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Open Meeting Law Book

Arizona open meeting law 2007

This information is compiled and provided by:
The Arizona Ombudsman â€“ Citizensâ€™ Aide
3737 N. 7th Street, Suite 209
Phoenix, Arizona 85014
( 602) 277- 7292
1- 800- 872- 2879
Fax: ( 602) 277- 7312
e- mail: ombuds@ azoca. gov
website: www. azoca. gov
September 2007 THE ARIZONA OPEN MEETING LAW
Message from the Arizona Ombudsman
â€œ Let the people know the facts and the country will be safe.â€
â€“ Abraham Lincoln, 1861
The operation and activities of government and of government officials are issues of
interest to the general public. The Open Meeting Law is in place to ensure that the peo-pleâ€™s
business is conducted publicly. The law also helps public officials do their jobs
more efficiently and effectively.
Effective January 1, 2007, in an effort to increase government awareness and provide
the citizens of Arizona an effective and efficient means to get answers and resolve pub-lic
access disputes, new legislation expanded the Ombudsman- Citizensâ€™ Aide Office
to provide free services to citizens and public officials to help untangle the public ac-cess
web. The duties of the Ombudsman include: preparing materials on public access
laws, providing training, coaching and assisting citizens, investigating complaints,
requesting testimony or evidence, conducting hearings, making recommendations,
reporting misconduct, and referring violations to the Office of the Attorney General
for enforcement.
This pamphlet contains information relating to the Arizona Open Meeting Law and
is provided to serve as a quick reference for you. Part I of the pamphlet contains a copy
of the text of the Open Meeting Law Statutes. Part II of the pamphlet contains Chap-ter
6 of the Arizona Agency Handbook, which explains the Open Meeting Laws. 1 Part
III of the pamphlet provides a summary of recent statutory changes, recent case law,
and recent Attorney General Opinions. 2 Part IV provides the Ombudsmanâ€™s statutory
authority to educate and investigate matters relating to public access laws.
For more information, or to schedule training, please call the Ombudsmanâ€™s Office at
602- 277- 7292 or 800- 872- 2879. You can also send a letter to Arizona Ombudsman-
Citizensâ€™ Aide 3737 N. 7th St. Suite 209 Phoenix, AZ 85014, fax a letter to 602- 277-
7312, send an e- mail to ombuds@ azoca. gov, or come into the office. Of course, you
can always visit the Ombudsmanâ€™s website at www. azoca. gov.
Patrick Shannahan
Arizona Ombudsman â€“ Citizensâ€™Aide
1 Please note that the Arizona Agency Handbook was last revised in May 2001. For a
summary of recent activity, please see Part III.
2 Part III is not an exhaustive list of recent activity.
i
ii
Table of Contents
Message from Patrick Shannahan,
Arizona Ombudsman â€“ Citizensâ€™Aide . . . . . . . . . . . . . . . . . . . . . . . . . . i
Part I
Arizona Revised Statutes
Title 38. Public Officers and Employees
Chapter 3. Conduct of Office,
Article 3.1. Public Meetings and Proceedings . . . . . . . . . . . . . . . . . . . . 1
Part II
Arizona Agency Handbook
Chapter 7, Open Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
The Arizona Agency Handbook was written by
the Office of the Arizona Attorney General.
Part III
Summary of Recent Activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Part IV
Ombudsman- Citizensâ€™ Aide Enabling Statute . . . . . . . . . . . . . . . . . . . 57
iii
iv
Part I
Arizona Revised Statutes
Title 38. Public Officers and Employees
Chapter 3. Conduct of Office
Article 3.1. Public Meetings and Proceedings
38- 431. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
38- 431.01. Meetings shall be open to the public . . . . . . . . . . . . . . . . . . . 2
38- 431.02. Notice of meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
38- 431.03. Executive sessions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
38- 431.04. Writ of mandamus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
38- 431.05. Meeting held in violation of article;
business transacted null and void; ratification . . . . . . . . . . . . 7
38- 431.06. Investigations; written investigative demands . . . . . . . . . . . . 7
38- 431.07. Violations; enforcement; removal from office;
in camera review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
38- 431.08. Exceptions; limitation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
38- 431.09. Declaration of public policy. . . . . . . . . . . . . . . . . . . . . . . . . 10
1
ARTICLE 3.1 - PUBLIC MEETINGS AND PROCEEDINGS
38- 431. Definitions
In this article, unless the context otherwise requires:
1. â€œ Advisory committeeâ€ or â€œ subcommitteeâ€ means any entity, however designated,
that is officially established, on motion and order of a public body or by the pre-siding
officer of the public body, and whose members have been appointed for the
specific purpose of making a recommendation concerning a decision to be made
or considered or a course of conduct to be taken or considered by the public body.
2. â€œ Executive sessionâ€ means a gathering of a quorum of members of a public body
from which the public is excluded for one or more of the reasons prescribed in sec-tion
38- 431.03. In addition to the members of the public body, officers, appointees
and employees as provided in section 38- 431.03 and the auditor general as pro-vided
in section 41- 1279.04, only individuals whose presence is reasonably nec-essary
in order for the public body to carry out its executive session responsibilities
may attend the executive session.
3. â€œ Legal actionâ€ means a collective decision, commitment or promise made by a pub-lic
body pursuant to the constitution, the public bodyâ€™s charter, bylaws or speci-fied
scope of appointment and the laws of this state.
4. â€œ Meetingâ€ means the gathering, in person or through technological devices, of a
quorum of members of a public body at which they discuss, propose or take legal
action, including any deliberations by a quorum with respect to such action.
5. â€œ Political subdivisionâ€ means all political subdivisions of this state, including
without limitation all counties, cities and towns, school districts and special dis-tricts.
6. â€œ Public bodyâ€ means the legislature, all boards and commissions of this state or
political subdivisions, all multimember governing bodies of departments, agencies,
institutions and instrumentalities of the state or political subdivisions, including
without limitation all corporations and other instrumentalities whose boards of
directors are appointed or elected by the state or political subdivision. Public body
includes all quasi- judicial bodies and all standing, special or advisory committees
or subcommittees of, or appointed by, the public body.
7. â€œ Quasi- judicial bodyâ€ means a public body, other than a court of law, possessing
the power to hold hearings on disputed matters between a private person and a pub-lic
agency and to make decisions in the general manner of a court regarding such
disputed claims.
38- 431.01. Meetings shall be open to the public
A. All meetings of any public body shall be public meetings and all persons so de-siring
shall be permitted to attend and listen to the deliberations and proceedings.
All legal action of public bodies shall occur during a public meeting.
B. All public bodies shall provide for the taking of written minutes or a recording of
all their meetings, including executive sessions. For meetings other than executive
2
sessions, such minutes or recording shall include, but not be limited to:
1. The date, time and place of the meeting.
2. The members of the public body recorded as either present or absent.
3. A general description of the matters considered.
4. An accurate description of all legal actions proposed, discussed or taken, and
the names of members who propose each motion. The minutes shall also
include the names of the persons, as given, making statements or presenting
material to the public body and a reference to the legal action about which they
made statements or presented material.
C. Minutes of executive sessions shall include items set forth in subsection B,
paragraphs 1, 2 and 3 of this section, an accurate description of all instructions
given pursuant to section 38- 431.03, subsection A, paragraphs 4, 5 and 7 and such
other matters as may be deemed appropriate by the public body.
D. The minutes or a recording of a meeting shall be available for public inspection
three working days after the meeting except as otherwise specifically provided by
this article.
E. A public body of a city or town with a population of more than two thousand five
hundred persons shall:
1. Within three working days after a meeting, except for subcommittees and
advisory committees, post on its internet website, if applicable, either:
( a) A statement describing the legal actions taken by the public body of the city
or town during the meeting.
( b) Any recording of the meeting.
2. Within two working days following approval of the minutes, post approved
minutes of city or town council meetings on its internet website, if applicable,
except as otherwise specifically provided by this article.
3. Within ten working days after a subcommittee or advisory committee
meeting, post on its internet website, if applicable, either:
( a) A statement describing legal action, if any.
( b) A recording of the meeting.
F. All or any part of a public meeting of a public body may be recorded by any per-son
in attendance by means of a tape recorder or camera or any other means of
sonic reproduction, provided that there is no active interference with the conduct
of the meeting.
G. The secretary of state for state public bodies, the city or town clerk for municipal
public bodies and the county clerk for all other local public bodies shall distrib-ute
open meeting law materials prepared and approved by the attorney general to
a person elected or appointed to a public body prior to the day that person takes
office.
H. A public body may make an open call to the public during a public meeting, sub-ject
to reasonable time, place and manner restrictions, to allow individuals to
address the public body on any issue within the jurisdiction of the public body. At
the conclusion of an open call to the public, individual members of the public body
3
may respond to criticism made by those who have addressed the public body,
may ask staff to review a matter or may ask that a matter be put on a future agen-da.
However, members of the public body shall not discuss or take legal action on
matters raised during an open call to the public unless the matters are properly no-ticed
for discussion and legal action.
I. A member of a public body shall not knowingly direct any staff member to com-municate
in violation of this article.
38- 431.02. Notice of meetings
A. Public notice of all meetings of public bodies shall be given as follows:
1. The public bodies of the state shall file a statement with the secretary of state
stating where all public notices of their meetings will be posted and shall give
such additional public notice as is reasonable and practicable as to all meet-ings.
2. The public bodies of the counties, school districts and other special districts
shall file a statement with the clerk of the board of supervisors stating where
all public notices of their meetings will be posted and shall give such additional
public notice as is reasonable and practicable as to all meetings.
3. The public bodies of the cities and towns shall file a statement with the city
clerk or mayorâ€™s office stating where all public notices of their meetings will
be posted and shall give such additional public notice as is reasonable and prac-ticable
as to all meetings.
4. The public bodies of the cities and towns that have an internet web site shall
post all public notices of their meetings on their internet web site and shall give
additional public notice as is reasonable and practicable as to all meetings. A
technological problem or failure that either prevents the posting of public no-tices
on a city or town web site or that temporarily or permanently prevents the
usage of all or part of the web site does not preclude the holding of the meet-ing
for which the notice was posted if all other public notice requirements re-quired
by this section are complied with.
B. If an executive session will be held, the notice shall be given to the members of
the public body, and to the general public, stating the specific provision of law au-thorizing
the executive session.
C. Except as provided in subsections D and E, meetings shall not be held without at
least twenty- four hoursâ€™ notice to the members of the public body and to the gen-eral
public.
D. In case of an actual emergency, a meeting, including an executive session, may be
held on such notice as is appropriate to the circumstances. If this subsection is uti-lized
for conduct of an emergency session or the consideration of an emergency
measure at a previously scheduled meeting the public body must post a public no-tice
within twenty- four hours declaring that an emergency session has been held
and setting forth the information required in subsections H and I.
E. A meeting may be recessed and resumed with less than twenty- four hoursâ€™ notice
4
if public notice of the initial session of the meeting is given as required in sub-section
A, and if, prior to recessing, notice is publicly given as to the time and place
of the resumption of the meeting or the method by which notice shall be publicly
given.
F. A public body that intends to meet for a specified calendar period, on a regular day,
date or event during such calendar period, and at a regular place and time, may post
public notice of such meetings at the beginning of such period. Such notice shall
specify the period for which notice is applicable.
G. Notice required under this section shall include an agenda of the matters to be dis-cussed
or decided at the meeting or information on how the public may obtain a
copy of such an agenda. The agenda must be available to the public at least twen-ty-
four hours prior to the meeting, except in the case of an actual emergency
under subsection D.
H. Agendas required under this section shall list the specific matters to be discussed,
considered or decided at the meeting. The public body may discuss, consider or
make decisions only on matters listed on the agenda and other matters related
thereto.
I. Notwithstanding the other provisions of this section, notice of executive sessions
shall be required to include only a general description of the matters to be con-sidered.
Such agenda shall provide more than just a recital of the statutory provi-sions
authorizing the executive session, but need not contain information that
would defeat the purpose of the executive session, compromise the legitimate
privacy interests of a public officer, appointee or employee, or compromise the
attorney- client privilege.
J. Notwithstanding subsections H and I, in the case of an actual emergency a mat-ter
may be discussed and considered and, at public meetings, decided, where the
matter was not listed on the agenda provided that a statement setting forth the rea-sons
necessitating such discussion, consideration or decision is placed in the min-utes
of the meeting and is publicly announced at the public meeting. In the case
of an executive session, the reason for consideration of the emergency measure
shall be announced publicly immediately prior to the executive session.
K. Notwithstanding subsection H, the chief administrator, presiding officer or a mem-ber
of a public body may present a brief summary of current events without list-ing
in the agenda the specific matters to be summarized, provided that:
1. The summary is listed on the agenda.
2. The public body does not propose, discuss, deliberate or take legal action at
that meeting on any matter in the summary unless the specific matter is prop-erly
noticed for legal action.
38- 431.03. Executive sessions
A. Upon a public majority vote of the members constituting a quorum, a public body
may hold an executive session but only for the following purposes:
1. Discussion or consideration of employment, assignment, appointment, pro-
5
motion, demotion, dismissal, salaries, disciplining or resignation of a public
officer, appointee or employee of any public body, except that, with the ex-ception
of salary discussions, an officer, appointee or employee may demand
that the discussion or consideration occur at a public meeting. The public
body shall provide the officer, appointee or employee with written notice of
the executive session as is appropriate but not less than twenty- four hours for
the officer, appointee or employee to determine whether the discussion or
consideration should occur at a public meeting.
2. Discussion or consideration of records exempt by law from public inspection,
including the receipt and discussion of information or testimony that is specif-ically
required to be maintained as confidential by state or federal law.
3. Discussion or consultation for legal advice with the attorney or attorneys of the
public body.
4. Discussion or consultation with the attorneys of the public body in order to con-sider
its position and instruct its attorneys regarding the public bodyâ€™s position
regarding contracts that are the subject of negotiations, in pending or con-templated
litigation or in settlement discussions conducted in order to avoid
or resolve litigation.
5. Discussions or consultations with designated representatives of the public
body in order to consider its position and instruct its representatives regarding
negotiations with employee organizations regarding the salaries, salary sched-ules
or compensation paid in the form of fringe benefits of employees of the
public body.
6. Discussion, consultation or consideration for international and interstate ne-gotiations
or for negotiations by a city or town, or its designated representa-tives,
with members of a tribal council, or its designated representatives, of an
Indian reservation located within or adjacent to the city or town.
7. Discussions or consultations with designated representatives of the public
body in order to consider its position and instruct its representatives regarding
negotiations for the purchase, sale or lease of real property.
B. Minutes of and discussions made at executive sessions shall be kept confidential
except from:
1. Members of the public body which met in executive session.
2. Officers, appointees or employees who were the subject of discussion or con-sideration
pursuant to subsection A, paragraph 1 of this section.
3. The auditor general on a request made in connection with an audit authorized
as provided by law.
4. A county attorney or the attorney general when investigating alleged violations
of this article.
C. The public body shall instruct persons who are present at the executive session re-garding
the confidentiality requirements of this article.
D. Legal action involving a final vote or decision shall not be taken at an executive
session, except that the public body may instruct its attorneys or representatives
6
as provided in subsection A, paragraphs 4, 5 and 7 of this section. A public vote
shall be taken before any legal action binds the public body.
E. Except as provided in section 38- 431.02, subsections I and J, a public body shall
not discuss any matter in an executive session which is not described in the notice
of the executive session.
F. Disclosure of executive session information pursuant to this section or section 38-
431.06 does not constitute a waiver of any privilege, including the attorney- client
privilege. Any person receiving executive session information pursuant to this
section or section 38- 431.06 shall not disclose that information except to the at-torney
general or county attorney, by agreement with the public body or to a court
in camera for purposes of enforcing this article. Any court that reviews executive
session information shall take appropriate action to protect privileged information.
38- 431.04. Writ of mandamus
Where the provisions of this article are not complied with, a court of competent juris-diction
may issue a writ of mandamus requiring that a meeting be open to the public.
38- 431.05. Meeting held in violation of article; business transacted null and
void; ratification
A. All legal action transacted by any public body during a meeting held in violation
of any provision of this article is null and void except as provided in subsection B.
B. A public body may ratify legal action taken in violation of this article in accordance
with the following requirements:
1. Ratification shall take place at a public meeting within thirty days after dis-covery
of the violation or after such discovery should have been made by the
exercise of reasonable diligence.
2. The notice for the meeting shall include a description of the action to be rati-fied,
a clear statement that the public body proposes to ratify a prior action and
information on how the public may obtain a detailed written description of the
action to be ratified.
3. The public body shall make available to the public a detailed written descrip-tion
of the action to be ratified and all deliberations, consultations and deci-sions
by members of the public body that preceded and related to such action.
The written description shall also be included as part of the minutes of the meet-ing
at which ratification is taken.
4. The public body shall make available to the public the notice and detailed writ-ten
description required by this section at least seventy- two hours in advance
of the public meeting at which the ratification is taken.
38- 431.06. Investigations; written investigative demands
A. On receipt of a written complaint signed by a complainant alleging a violation of
this article or on their own initiative, the attorney general or the county attorney
for the county in which the alleged violation occurred may begin an investigation.
7
B. In addition to other powers conferred by this article, in order to carry out the du-ties
prescribed in this article, the attorney general or the county attorney for the
county in which the alleged violation occurred, or their designees, may:
1. Issue written investigative demands to any person.
2. Administer an oath or affirmation to any person for testimony.
3. Examine under oath any person in connection with the investigation of the al-leged
violation of this article.
4. Examine by means of inspecting, studying or copying any account, book,
computer, document, minutes, paper, recording or record.
5. Require any person to file on prescribed forms a statement or report in writ-ing
and under oath of all the facts and circumstances requested by the attor-ney
general or county attorney.
C. The written investigative demand shall:
1. Be served on the person in the manner required for service of process in this
state or by certified mail, return receipt requested.
2. Describe the class or classes of documents or objects with sufficient definite-ness
to permit them to be fairly identified.
3. Prescribe a reasonable time at which the person shall appear to testify and with-in
which the document or object shall be produced and advise the person that
objections to or reasons for not complying with the demand may be filed with
the attorney general or county attorney on or before that time.
4. Specify a place for the taking of testimony or for production of a document or
object and designate a person who shall be the custodian of the document or
object.
D. If a person objects to or otherwise fails to comply with the written investigation
demand served on the person pursuant to subsection C, the attorney general or
county attorney may file an action in the superior court for an order to enforce the
demand. Venue for the action to enforce the demand shall be in Maricopa county
or in the county in which the alleged violation occurred. Notice of hearing the ac-tion
to enforce the demand and a copy of the action shall be served on the person
in the same manner as that prescribed in the Arizona rules of civil procedure. If a
court finds that the demand is proper, including that the compliance will not vio-late
a privilege and that there is not a conflict of interest on the part of the attor-ney
general or county attorney, that there is reasonable cause to believe there may
have been a violation of this article and that the information sought or document
or object demanded is relevant to the violation, the court shall order the person to
comply with the demand, subject to modifications the court may prescribe. If the
person fails to comply with the courtâ€™s order, the court may issue any of the fol-lowing
orders until the person complies with the order:
1. Adjudging the person in contempt of court.
2. Granting injunctive relief against the person to whom the demand is issued to
restrain the conduct that is the subject of the investigation.
3. Granting other relief the court deems proper.
8
38- 431.07. Violations; enforcement; removal from office; in camera review
A. Any person affected by an alleged violation of this article, the attorney general or
the county attorney for the county in which an alleged violation of this article oc-curred
may commence a suit in the superior court in the county in which the pub-lic
body ordinarily meets, for the purpose of requiring compliance with, or the
prevention of violations of, this article, by members of the public body, or to de-termine
the applicability of this article to matters or legal actions of the public body.
For each violation the court may impose a civil penalty not to exceed five hundred
dollars against a person who violates this article or who knowingly aids, agrees to
aid or attempts to aid another person in violating this article and order such equi-table
relief as it deems appropriate in the circumstances. The civil penalties award-ed
pursuant to this section shall be deposited into the general fund of the public
body concerned. The court may also order payment to a successful plaintiff in a
suit brought under this section of the plaintiffâ€™s reasonable attorney fees, by the de-fendant
state, the political subdivision of the state or the incorporated city or town
of which the public body is a part or to which it reports. If the court determines
that a public officer with intent to deprive the public of information violated any
provision of this article the court may remove the public officer from office and
shall assess the public officer or a person who knowingly aided, agreed to aid or
attempted to aid the public officer in violating this article, or both, with all of the
costs and attorney fees awarded to the plaintiff pursuant to this section.
B. A public body shall not expend public monies to employ or retain legal counsel
to provide legal services or representation to the public body or any of its officers
in any legal action commenced pursuant to any provisions of this article, unless
the public body has authority to make such expenditure pursuant to other provi-sions
of law and takes a legal action at a properly noticed open meeting approv-ing
such expenditure prior to incurring any such obligation or indebtedness.
C. In any action brought pursuant to this section challenging the validity of an exec-utive
session, the court may review in camera the minutes of the executive session,
and if the court in its discretion determines that the minutes are relevant and that
justice so demands, the court may disclose to the parties or admit in evidence part
or all of the minutes.
38- 431.08. Exceptions; limitation
A. This article does not apply to:
1. Any judicial proceeding of any court or any political caucus of the legislature.
2. Any conference committee of the legislature, except that all such meetings shall
be open to the public.
3. The commissions on appellate and trial court appointments and the commis-sion
on judicial qualifications.
4. Good cause exception determinations and hearings conducted by the board of
fingerprinting pursuant to section 41- 619.55.
B. A hearing held within a prison facility by the board of executive clemency is sub-
9
ject to this article, except that the director of the state department of corrections
may:
1. Prohibit, on written findings that are made public within five days of so find-ing,
any person from attending a hearing whose attendance would constitute
a serious threat to the life or physical safety of any person or to the safe, se-cure
and orderly operation of the prison.
2. Require a person who attends a hearing to sign an attendance log. If the per-son
is over sixteen years of age, the person shall produce photographic iden-tification
which verifies the personâ€™s signature.
3. Prevent and prohibit any articles from being taken into a hearing except record-ing
devices, and if the person who attends a hearing is a member of the media,
cameras.
4. Require that a person who attends a hearing submit to a reasonable search on
entering the facility.
C. The exclusive remedies available to any person who is denied attendance at or re-moved
from a hearing by the director of the state department of corrections in vi-olation
of this section shall be those remedies available in section 38- 431.07, as
against the director only.
D. Either house of the legislature may adopt a rule or procedure pursuant to article
IV, part 2, section 8, Constitution of Arizona, to provide an exemption to the no-tice
and agenda requirements of this article or to allow standing or conference com-mittees
to meet through technological devices rather than only in person.
38- 431.09. Declaration of public policy
It is the public policy of this state that meetings of public bodies be conducted open-ly
and that notices and agendas be provided for such meetings which contain such in-formation
as is reasonably necessary to inform the public of the matters to be discussed
or decided. Toward this end, any person or entity charged with the interpretations of
this article shall construe any provision of this article in favor of open and public
meetings.
10
Part II
Arizona Agency Handbook
Chapter 7
Open Meetings
Section 7.1 Scope of this Chapter . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 7.2 Arizonaâ€™s Open Meeting Law
7.2.1 History of Arizonaâ€™s Open Meeting Law. . . . . . . . . 14
7.2.2 Legislative Intent . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 7.3 Government Bodies Covered by the Open Meeting Law
7.3.1 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
7.3.2 Boards and Commissions. . . . . . . . . . . . . . . . . . . . . 15
7.3.3 Quasi- Governmental Corporations . . . . . . . . . . . . . 15
7.3.4 Quasi- Judicial Bodies. . . . . . . . . . . . . . . . . . . . . . . . 16
7.3.5 Advisory Committees. . . . . . . . . . . . . . . . . . . . . . . . 16
7.3.6 Special and Standing Committees
and Subcommittees . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 7.4 Government Bodies and Proceedings Not Covered
by the Open Meeting Law. . . . . . . . . . . . . . . . . . . . . . . 17
7.4.1 Judicial Appointment Commissions. . . . . . . . . . . . . 17
7.4.2 Proceedings Before Courts. . . . . . . . . . . . . . . . . . . . 17
7.4.3 The Legislature. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
7.4.4 Student Disciplinary Proceedings . . . . . . . . . . . . . . 17
7.4.5 Insurance Guaranty Fund Boards. . . . . . . . . . . . . . . 17
7.4.6 Hearings Held in Prison Facilities . . . . . . . . . . . . . . 17
7.4.7 Board of Fingerprinting . . . . . . . . . . . . . . . . . . . . . . 17
7.4.8 Homeowners Associations . . . . . . . . . . . . . . . . . . . . 18
Section 7.5 The Actions and Activities Covered by the Open Meeting Law
7.5.1 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
7.5.2 Circumvention of the Open Meeting Law . . . . . . . . 18
7.5.3 Applicability to Staff Members and Others . . . . . . . 19
Section 7.6 Notice of Meetings
7.6.1 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
7.6.2 Notice to Members of the Public Body . . . . . . . . . . 19
7.6.3 Notice to the Public . . . . . . . . . . . . . . . . . . . . . . . . . 19
7.6.3.1 Disclosure Statement . . . . . . . . . . . . . . . . . . . . . . . . 19
7.6.3.2 Public Notice of Meetings . . . . . . . . . . . . . . . . . . . . 20
11
7.6.4 Contents of the Notice . . . . . . . . . . . . . . . . . . . . . . . 20
7.6.5 Time for Giving Notice . . . . . . . . . . . . . . . . . . . . . . 20
7.6.6 Notice of Regular Meetings . . . . . . . . . . . . . . . . . . . 21
7.6.7 Notice of Executive Sessions . . . . . . . . . . . . . . . . . . 21
7.6.8 Combined Notice of Public Meeting
and Executive Session . . . . . . . . . . . . . . . . . . . . . . . 22
7.6.9 Maintaining Records of Notice Given . . . . . . . . . . . 22
Section 7.7 Agendas
7.7.1 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
7.7.2 Contents of the Agenda â€” Public Meeting . . . . . . . 23
7.7.3 Contents of the Agenda â€” Executive Session . . . . . 23
7.7.4 Distribution of the Agenda . . . . . . . . . . . . . . . . . . . . 23
7.7.5 Consent Agendas . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
7.7.6 Discussing and Deciding Matters
Not Listed on the Agenda. . . . . . . . . . . . . . . . . . . . . 24
7.7.7 Calls to the Public . . . . . . . . . . . . . . . . . . . . . . . . . . 24
7.7.8 Current Event Summaries . . . . . . . . . . . . . . . . . . . . 25
7.7.9 Emergencies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
7.7.10 Changes to the Agenda. . . . . . . . . . . . . . . . . . . . . . . 26
Section 7.8 Minutes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
7.8.1 Form of and Access to the Minutes . . . . . . . . . . . . . 26
7.8.2 Contents of the Minutes of Public Meetings . . . . . . 26
7.8.3 Contents of the Minutes of Executive Sessions . . . . 27
7.8.4 Confidentiality of Executive Session Minutes . . . . . 28
Section 7.9 Executive Sessions . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
7.9.1 Deciding to Go Into Executive Session . . . . . . . . . . 29
7.9.2 Executive Session Requirements . . . . . . . . . . . . . . . 29
7.9.3 Authorized Executive Sessions . . . . . . . . . . . . . . . . 29
7.9.4 Personnel Matters. . . . . . . . . . . . . . . . . . . . . . . . . . . 29
7.9.5 Confidential Records . . . . . . . . . . . . . . . . . . . . . . . . 31
7.9.6 Legal Advice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
7.9.7 Litigation, Contract Negotiations
and Settlement Discussions . . . . . . . . . . . . . . . . . . . 32
7.9.8 Employee Salary Discussions . . . . . . . . . . . . . . . . . 32
7.9.9 International, Interstate, and Tribal Negotiations. . . 33
7.9.10 Purchase, Sale or Lease of Real Property . . . . . . . . 33
7.9.11 Taking Legal Action . . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 7.10 Public Access to Meetings
7.10.1 Public Participation and Access . . . . . . . . . . . . . . . . 33
7.10.2 Telephone Conferences . . . . . . . . . . . . . . . . . . . . . . 34
7.10.3 Recording the Proceedings. . . . . . . . . . . . . . . . . . . . 35
Section 7.11 Ratification
7.11.1 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
12
7.11.2 Procedure for Ratification . . . . . . . . . . . . . . . . . . . . 35
Section 7.12 Sanctions for Violations of the Open Meeting Law
7.12.1 Nullification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
7.12.2 Investigation and Enforcement. . . . . . . . . . . . . . . . . 36
7.12.3 Civil Penalties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
7.12.4 Attorneyâ€™s Fees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
7.12.5 Expenditure for Legal Services by Public Body
Relating to the Open Meeting Law . . . . . . . . . . . . . 38
7.12.6 Removal From Office. . . . . . . . . . . . . . . . . . . . . . . . 38
Form 7.1 Disclosure Statement. . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Form 7.2 Notice of Public Meeting of a Public Body . . . . . . . . . 40
Form 7.3 Notice of Public Meeting of a Subcommittee
or Advisory Committee of a Public Body. . . . . . . . . . . 41
Form 7.4 Notice of Regular Meetings of a Public Body . . . . . . . 42
Form 7.5 Notice of Meeting and Possible
Executive Session of a Public Body . . . . . . . . . . . . . . . 43
Form 7.6 Notice of Combined Public Meeting
and Executive Session. . . . . . . . . . . . . . . . . . . . . . . . . . 44
Form 7.7 Sample Notice and Agenda of Public Meeting
and Executive Session. . . . . . . . . . . . . . . . . . . . . . . . . . 45
Form 7.8 Certification of Posting of Notice . . . . . . . . . . . . . . . . . 47
Form 7.9 Special Notice of Emergency Meeting . . . . . . . . . . . . . 48
Form 7.10 Minutes of Public Meeting . . . . . . . . . . . . . . . . . . . . . . 49
Form 7.11 Minutes of Executive Session . . . . . . . . . . . . . . . . . . . . 50
Form 7.12 Notice of Action to be Ratified . . . . . . . . . . . . . . . . . . . 51
Form 7.13 Employee Notice of Executive Session . . . . . . . . . . . . 52
13
7.1 Scope of this Chapter.
This Chapter discusses Arizonaâ€™s Open Meeting Law, A. R. S. Â Â 38- 431 to - 431.09,
with particular emphasis on the application of the Open Meeting Law to the day- to-day
operations of state officers, bodies, and agencies. This Chapter does not resolve
all issues that may arise under the Open Meeting Law, but rather is intended to serve
as a reference for public officials who must comply with the law. Anyone faced with
a situation not specifically addressed in this Chapter should consult their legal coun-sel
before proceeding.
7.2 Arizonaâ€™s Open Meeting Law.
7.2.1 History of Arizonaâ€™s Open Meeting Law. All fifty states have enacted some
type of legislation providing the public with a statutory right to openness in govern-ment.
In addition, the United States Congress in 1976 enacted the Federal Open Meet-ing
Act, 5 U. S. C. Â 552b. Arizonaâ€™s Open Meeting Law was first adopted in 1962 and
amended in 1974, 1975, 1977, 1978, 1982, 1983, 1985, 1990, and extensively in
2000. For a detailed discussion of the early history of the Open Meeting Law through
1975, see Ariz. Attâ€™y Gen. Op. 75- 7.
7.2.2 Legislative Intent. The Legislature has repeatedly expressed its intent that the
Open Meeting Law be construed to maximize public access to the governmental
process. In first enacting the Open Meeting Law in 1962, the Legislature declared that:
â€œ It is the public policy of this state that proceedings in meetings of governing bodies
of the state and political subdivisions thereof exist to aid in the conduct of the peopleâ€™s
business. It is the intent of this act that their official deliberations and proceedings be
conducted openly.â€
In 1978, after a series of court opinions narrowly construing the Open Meeting Law,
the Legislature reiterated its policy by adding A. R. S. Â 38- 431.09. That statute now
provides:
It is the public policy of this state that meetings of public bodies be con-ducted
openly and that notices and agendas be provided for such meetings
which contain such information as is reasonably necessary to inform the
public of the matters to be discussed or decided. Toward this end, any per-son
or entity charged with the interpretation of this article shall construe
any provision of this article in favor of open and public meetings.
A. R. S. Â 38- 431.09. In keeping with this expressed intent, any uncertainty under the
Open Meeting Law should be resolved in favor of openness in government. Any ques-tion
whether the Open Meeting Law applies to a certain public body likewise should
be resolved in favor of applying the law.
14
7.3 Government Bodies Covered by the Open Meeting Law.
7.3.1 Generally. The provisions of the Open Meeting Law apply to all public bodies.
A public body is defined in A. R. S. Â 38- 431( 6) as follows:
â€œ Public bodyâ€ means the legislature, all boards and commissions of this
state or political subdivisions, all multimember governing bodies of de-partments,
agencies, institutions and instrumentalities of the state or po-litical
subdivisions, including without limitation all corporations and other
instrumentalities whose boards of directors are appointed or elected by the
state or political subdivision. Public body includes all quasi- judicial bod-ies
and all standing, special or advisory committees or subcommittees of,
or appointed by, such public body.
This definition specifically includes public bodies of all political subdivisions. A po-litical
subdivision is defined in A. R. S. Â 38- 431( 5) to include â€œ all political subdivisions
of this state, including without limitation all counties, cities and towns, school districts
and special districts.â€
The definition of public body encompasses five basic categories of public bodies:
1) boards, commissions, and other multimember governing bodies; 2) quasi- govern-mental
corporations; 3) quasi- judicial bodies; 4) advisory committees; and 5) stand-ing
and special committees and subcommittees of any of the above. See A. R. S. Â
38- 431( 6).
7.3.2 Boards and Commissions. All boards and commissions and other multimem-ber
governing bodies of the state or its political subdivisions or of the departments,
agencies, institutions, and instrumentalities of the state or its political subdivisions are
covered by the Open Meeting Law. See A. R. S. Â 38- 431( 6). The multimember gov-erning
body must be created by law or by an official act pursuant to some legal au-thority.
See id. Examples of public bodies created by law include the Arizona
Legislature, county boards of supervisors, city and town councils, school boards, the
governing boards of special districts, and all state, county, and municipal licensing and
regulatory boards.
The Open Meeting Law applies only to multimember bodies and does not apply
to the deliberations and meetings conducted by the single head of an agency. See
Ariz. Attâ€™y Gen. Ops. I92- 007, 75- 7. Accordingly, the director of a department is not
subject to the Open Meeting Law when meeting with staff members to discuss the op-erations
of the department.
7.3.3 Quasi- Governmental Corporations. The boards of directors of corporations and
instrumentalities of the state or its political subdivisions are subject to the Open Meet-ing
Law when the members of the board are appointed or elected by the state or its
political subdivisions. See A. R. S. Â 38- 431( 5), ( 6). For example, the Board of Direc-tors
of the Phoenix Civic Improvement Corporation falls into this category. The Open
Meeting Law does not apply, however, to a private non- profit hospital association
15
that has a board of directors elected by the electorate of the hospital district. Prescott
Newspapers, Inc. v. Yavapai Community Hosp. Assâ€™n, 163 Ariz. 33, 785 P. 2d 1221
( App. 1989).
7.3.4 Quasi- Judicial Bodies. The Open Meeting Law defines a quasi- judicial body
as â€œ a public body, other than a court of law, possessing the power to hold hearings on
disputed matters between a private person and a public agency and to make decisions
in the general manner of a court regarding such disputed claims.â€ A. R. S. Â 38- 431( 7).
This definition was added by the Legislature in 1978 to reverse the Arizona Supreme
Courtâ€™s decision in Arizona Press Club, Inc. v. Bd. of Tax Appeals, 113 Ariz. 545, 558
P. 2d 697 ( 1976), which held that the Open Meeting Law did not apply to bodies con-ducting
quasi- judicial functions, such as license revocation proceedings. See Ariz.
Attâ€™y Gen. Op. 78- 245. The Arizona Board of Tax Appeals and similar quasi- judicial
bodies are now expressly covered by the Open Meeting Law. A. R. S. Â 38- 431( 6), ( 7).
Contested case proceedings or quasi- judicial or adjudicatory proceedings con-ducted
by public bodies are subject to all of the requirements of the Open Meeting Law.
Rosenberg v. Bd. of Regents, 118 Ariz. 489, 578 P. 2d 168 ( 1978); City of Flagstaff v.
Bleeker, 123 Ariz. 436, 600 P. 2d 49 ( App. 1979); Ariz. Attâ€™y Gen. Op. 75- 7.
7.3.5 Advisory Committees. Advisory committees are subject to all of the require-ments
of the Open Meeting Law, except the minute- taking requirements. A. R. S. Â 38-
431.01( A), ( B). An advisory committee is defined as any group
officially established, upon motion and order of a public body or by the
presiding officer of the public body, and whose members have been ap-pointed
for the specific purpose of making a recommendation concerning
a decision to be made or considered or a course of conduct to be taken or
considered by the public body.
A. R. S. Â 38- 431( 1). This definition does not include advisory groups established by
the single head of an agency unless they are created pursuant to a statute, city char-ter,
or other provision of law or by an official act pursuant to some legal authority. See
Ariz. Attâ€™y Gen. Op. I92- 007; Section 7.3.2. A staff committee consisting exclusive-ly
of employees of the public body is not an advisory committee.
7.3.6 Special and Standing Committees and Subcommittees. Special and standing
committees and subcommittees of, or appointed by, any of the public bodies described
above are also covered by the Open Meeting Law, although subcommittees are not re-quired
to keep minutes. A. R. S. Â 38- 431.01( A), ( B). A special or standing committee
may consist of members of the public body who have been appointed by or author-ized
to act for the public body. A. R. S. Â 38- 431( 6). The fact that a committee consists,
in whole or in part, of persons who are not members of the public body does not af-fect
its status as a public body subject to the Open Meeting Law. See Ariz. Attâ€™y Gen.
Op. I80- 202.
16
7.4 Government Bodies and Proceedings Not Covered by the Open Meeting Law.
The Legislature has determined that certain public bodies need not comply with all or
portions of the Open Meeting Law in particular circumstances. This section identifies
some of those limited exceptions.
7.4.1 Judicial Appointment Commissions. The Commissions on Appellate and Trial
Court Appointments and the Commission on Judicial Qualifications are expressly ex-empt
from the Open Meeting Law. A. R. S. Â 38- 431.08( A)( 3).
7.4.2 Proceedings Before Courts. The Open Meeting Law does not apply to judicial
proceedings of courts within the judicial branch of government. A. R. S. Â Â 38- 431( 7),
- 431.08( A)( 1).
7.4.3 The Legislature. Meetings of legislative conference committees must be open
to the public; however, the committees are exempted from all other requirements of
the Open Meeting Law. A. R. S. Â 38- 431.08( A)( 2). The Open Meeting Law does not
apply to the activities of a political caucus of the Legislature. Id. Â ( A)( 1); cf. Ariz. Attâ€™y
Gen. Op. I83- 128. The Open Meeting Law permits either house of the Legislature to
adopt a rule or procedure exempting itself from the notice and agenda requirements
of the Open Meeting Law or to allow standing or conference committees to meet
through technological devices rather than in person. A. R. S. Â 38- 431.08( D).
7.4.4 Student Disciplinary Proceedings. Actions concerning the â€œ discipline, sus-pension
or expulsion of a pupilâ€ are not subject to the Open Meeting Law. A. R. S. Â
15- 843. This same statute, however, prescribes the procedures that the school board
must follow in handling these matters.
7.4.5 Insurance Guaranty Fund Boards. Special meetings of the property and ca-sualty
insurance guaranty fund in which the financial condition of any member insurer
is discussed are exempt from the Open Meeting Law. A. R. S. Â 20- 671.
7.4.6 Hearings Held in Prison Facilities. Hearings held by the Board of Pardons and
Paroles in a prison facility are subject to the Open Meeting Law, but the Director of
the State Department of Corrections may prohibit certain individuals from attending
such hearings because they pose a serious threat to the safety and security of others
or the prison. Other conditions on attendance, such as signing an attendance log and
submitting to a reasonable search, may be imposed as well. A. R. S. Â 38- 431.08( B).
7.4.7 Board of Fingerprinting. Good cause exception hearings conducted by the
Board of Fingerprinting pursuant to A. R. S. Â 41- 619.55 are exempt from the Open
Meeting Law. A. R. S. Â 38- 431.08( A)( 4).
17
7.4.8 Homeowners Associations. Because they are not governmental â€œ public bodies,â€
homeowners associations are not covered by the Open Meeting Law. Ariz. Attâ€™y Gen.
Op. 97- 012. They do, however, have to comply with separate notification requirements.
Id. Those requirements must be enforced privately because the Attorney General and
County Attorneys have no jurisdiction over such matters. For more information on the
requirements of homeowners associations, see A. R. S. Â 33- 1801 et seq.
7.5 The Actions and Activities Covered by the Open Meeting Law.
7.5.1 Generally. All meetings of a public body shall be public, and all persons desir-ing
to attend shall be permitted to attend and listen to the deliberations and proceed-ings.
A. R. S. Â 38- 431.01( A). All legal action of public bodies shall occur during a
public meeting. Id. A meeting is defined as â€œ the gathering, in person or through tech-nological
devices, of a quorum of members of a public body at which they discuss,
propose or take legal action, including any deliberations by a quorum with respect to
such action.â€ A. R. S. Â 38- 431( 4). The definition of meeting was modified by the Ari-zona
Legislature in 2000 to prohibit a quorum of a public body from secretly com-municating
through technological devices, including facsimile machines, telephones,
and electronic mail.
All discussions, deliberations, considerations, or consultations among a majority
of the members of a public body regarding matters that may foreseeably require final
action or a final decision by the governing body, constitute â€œ legal actionâ€ and, there-fore,
must be conducted in a public meeting or executive session in accordance with
the Open Meeting Law. Ariz. Attâ€™y Gen. Ops. 75- 8, I79- 4. See also A. R. S. Â Â 38-
431.01( A), - 431( 3). Whether the matter to be discussed may foreseeably require final
action is the key to this inquiry. It is nearly impossible to establish a precise guideline
as to when this foreseeability test has been met, and each case should be viewed on
its own merits and all doubts resolved in favor of compliance with the Open Meeting
Law. The safest course of action is to comply with the Open Meeting Law whenever
a majority of the body discusses the business of the public body. It does not matter what
label is placed on a gathering. It may be called a â€œ workâ€ or â€œ studyâ€ session, or the dis-cussion
may occur at a social function. Ariz. Attâ€™y Gen. Op. I79- 4. Discussion of the
public bodyâ€™s business may take place only in a public meeting or an executive ses-sion
in accordance with the requirements of the Open Meeting Law.
7.5.2 Circumvention of the Open Meeting Law. Discussions and deliberations be-tween
less than a majority of the members of a governing body, or other devices, when
used to circumvent the purposes of the Open Meeting Law violate that law. See Ariz.
Attâ€™y Gen. Op. 75- 8; Town of Palm Beach v. Gradison, 296 So. 2d 473 ( Fla. 1974).
Public officials may not circumvent public discussion by splintering the quorum and
having separate or serial discussions with a majority of the public body members.
Splintering the quorum can be done by meeting in person, by telephone, electronically,
18
or through other means to discuss a topic that is or may be presented to the public body
for a decision. Public officials should refrain from any activities that may undermine
public confidence in the public decision making process established in the Open
Meeting Law, including actions that may appear to remove discussions and decisions
from public view.
7.5.3 Applicability to Staff Members and Others. The Open Meeting Law further
provides that members of public bodies shall not knowingly direct any staff member
to communicate in violation of the Open Meeting Law. A. R. S. Â 38- 431.01( H). Peo-ple
knowingly aiding, agreeing to aid or attempting to aid another person in violating
the Open Meeting Law can be held liable for civil penalties, attorneysâ€™ fees, and costs
pursuant to A. R. S. Â 38- 431.07( A). See Sections 7.12.3 and 7.12.4. Hence, staff mem-bers,
representatives, citizens and others should take steps to ensure they are not act-ing
in a manner to commit a violation or subject themselves to liability.
7.6 Notice of Meetings.
7.6.1 Generally. The Open Meeting Law requires at least 24 hours advance notice of
all meetings to the public body and to the general public. Notice makes it possible for
the public to attend public meetings by informing them of when and where to go, and
of the matters under consideration. So informed, the public can enjoy meaningful
participation. Arizona courts have emphasized the importance of sufficient notice of
meetings. The Arizona Court of Appeals explained â€œ The notice provisions in the open
meeting law are obviously designed to give meaningful effect to provisions such as
A. R. S. Â Â 38- 431.01( A) and 38- 431.09. The goal of exposing the public decision- mak-ing
process to the public itself could be significantly, if not totally thwarted, in the ab-sence
of mandatory notice provisions and their enforcement.â€ Carefree Improvement
Assâ€™n v. City of Scottsdale, 133 Ariz. 106, 649 P. 2d 985 ( Ariz. App. 1982).
7.6.2 Notice to Members of the Public Body. Notice of all meetings, including ex-ecutive
sessions, must be given to the members of the public body. A. R. S. Â 38-
431.02( C). Generally, this requirement is met by mailing or hand- delivering a copy of
the notice to each member of the public body.
7.6.3 Notice to the Public. Notice of all meetings, including executive sessions, must
be given to the public. A. R. S. Â 38- 431.02. Giving public notice is a two step process.
Id.
7.6.3.1 Disclosure Statement. The first step is the filing by the public body of a dis-closure
statement identifying where public notices of its meetings will be posted.
Public bodies of the state must file this statement with the Secretary of State. A. R. S.
Â 38- 431.02( A)( 1). See Form 7.1. Public bodies of counties, school districts, and
19
other special districts must file this statement with the Clerk of the Board of Super-visors.
Id. Â ( A)( 2). Public bodies of cities and towns must file the statement with the
City Clerk or Mayorâ€™s office. Id. Â ( A)( 3). The location identified must be a place to
which the public has reasonable access. The location should have normal business
hours, should not be geographically isolated, should not have limited access and
should not be too difficult to find.
7.6.3.2 Public Notice of Meetings. Once the disclosure statement has been filed, the
public body must give notice of each of its meetings by posting a copy of the notice
in the public place identified in the disclosure statement and by giving â€œ such additional
public notice as is reasonable and practicable as to all meetings.â€ A. R. S. Â 38-
431.02( A). See Forms 7.2, 7.3, 7.4. Various public bodies fulfill this obligation to pro-vide
â€œ additional noticeâ€ by providing news releases to the news media concerning
proposed meetings, mailing notices to those asking to be informed of meetings, in-cluding
the date and time of such meetings in their newsletters and other publications
and providing information on the Internet or on public access television.
In addition to complying with the requirements of the Open Meeting Law, the no-tice
should conform with the provisions of the Americans with Disabilities Act ( ADA),
42 U. S. C. Â Â 12101 - 12213 ( Supp. 1992). See Sections 15.25.2 - 15.25.5. Public bod-ies
should include a statement such as the following in any notice it issues: â€œ Persons
with a disability may request a reasonable accommodation, such as a sign language
interpreter, by contacting [ name of designated agency contact person] at [ telephone
number and TDD telephone number]. Requests should be made as early as possible
to allow time to arrange the accommodation.â€
7.6.4 Contents of the Notice. Generally, the notice should include information iden-tifying
the public body and the date, time, and place of the meeting. See Forms 7.2,
7.3. In identifying the place of the meeting, the notice should specify the street address
of the building and the room number or other information identifying the specific room
in which the meeting will be held. See Form 7.7 ( Sample Notice and Agenda). In ad-dition,
the notices of public meetings and notices of executive sessions must contain
an agenda of the matters to be considered by the public body at the meeting or infor-mation
on how the public may obtain a copy of such an agenda. A. R. S. Â 38- 431.02( G).
For a complete discussion of the agenda requirements, see Section 7.7. Notice of a pub-lic
meeting at which the public body intends to ratify a prior act must contain addi-tional
specific information. See Section 7.11; Form 7.12.
7.6.5 Time for Giving Notice. As a general rule, a meeting may not be held without
giving the required notice at least twenty- four hours before the meeting. A. R. S. Â 38-
431.02( C). The best practice is for public bodies to give as much notice as possible.
There are three exceptions to the twenty- four hour notice requirement.
First, in the case of an â€œ actual emergency,â€ the meeting may be held upon such
shorter notice as is â€œ appropriate under the circumstances.â€ Id. Â ( D). An actual emer-
20
gency exists when, due to unforeseen circumstances, immediate action is necessary
to avoid some serious consequence that would result from waiting until the required
notice could be given. The existence of an actual emergency does not dispense with
the need to give twenty- four hoursâ€™ written notice to an employee to be discussed in
executive session. A. R. S. Â 38- 431.03( A)( 1); see Sections 7.7.9 and 7.9.4.
Second, notice of a meeting at which the public body is to consider the ratification
of a prior act taken in violation of the Open Meeting Law must be given seventy- two
hours in advance of the meeting. A. R. S. Â 38- 431.05( B)( 4); see Section 7.11.
Finally, less than twenty- four hoursâ€™ notice may be given when a properly noticed
meeting is recessed to a later date. A. R. S. Â 38- 431.02( E). A meeting may be re-cessed
and resumed with less than twenty- four hoursâ€™ notice if public notice of the ini-tial
session of the meeting is given, and if, before recessing, notice is publicly given
as to the time and place of the resumption of the meeting or the method by which no-tice
shall be publicly given. Id. Notice of the resumption of a meeting must comply
with the agenda requirements respecting the matters to be addressed when resumed.
Id. Â ( G). This may be accomplished by the presiding officer of the public body either
stating at the meeting the time, place, and agenda of the resumed meeting or stating
where a written notice and agenda of the resumed meeting will be posted. If an exec-utive
session is to be recessed and resumed with less than twenty- four hours notice,
the time, place, and agenda of the resumed meeting should be communicated to the
members of the public body and to the public by reconvening in public session and
following one of the two steps described above.
7.6.6 Notice of Regular Meetings. A public body that intends to meet for a specified
calendar period on a regular day or date during the calendar period, and at a regular
place and time, may post public notice of such meetings at the beginning of such pe-riod
and need not post additional notices for each meeting. A. R. S. Â 38- 431.02( F); see
Form 7.4. The notice must specify the period for which the notice is applicable. Id.
However, this method of posting notice will not satisfy the agenda requirements un-less
the notice also contains a clear statement that the agenda for any such meeting will
be available at least twenty- four hours in advance of the meeting and a statement as
to where and how the public may obtain a copy of the agenda. A. R. S. Â 38- 431.02( G).
7.6.7 Notice of Executive Sessions. When an executive session is to be held, the no-tice
must state the specific provision of law authorizing the executive session. A. R. S.
Â 38- 431.02( B); see Form 7.5. This provision requires that the notice specify the
numbered paragraph of subsection ( A) of A. R. S. Â 38- 431.03 that authorizes the ex-ecutive
session. A general citation to A. R. S. Â 38- 431.03 or subsection ( A) of that sec-tion
is insufficient. For example, a public body intending to meet in executive session
for purposes of discussing the purchase or lease of real property must cite in its no-tice
â€œ A. R. S. Â 38- 431.03( A)( 7).â€ A. R. S. Â 38- 431.02( B). The public body must cite
only the paragraphs applicable to the matters to be discussed and should not issue a
standardized form notice that cites all executive session provisions. In addition, an
21
agenda is required for an executive session. A. R. S. Â 38- 431.02( G); see Section 7.7.3.
In the case of an executive session concerning personnel matters, the public body
must give written notice to the affected officer, appointee, or employee in addition to
the public notice described above. A. R. S. Â 38- 431.03( A)( 1); see Section 7.9.4; Form
7.13. Such written notice must be provided not less than 24 hours before the sched-uled
meeting.
Many public bodies do not know whether they will have any legal questions on mat-ters
on the agenda until the discussion occurs. The Attorney General has opined that
public bodies may provide with their notices and agendas a statement that matters on
the public meeting agenda may be discussed in executive session for the purpose of
obtaining legal advice thereon, pursuant to A. R. S. Â 38- 431.03( A)( 3). Ariz. Attâ€™y
Gen. Op. I90- 19. An example of such a statement is â€œ The Board may vote to hold an
executive session for the purpose of obtaining legal advice from the Boardâ€™s attorney
on any matter listed on the agenda pursuant to A. R. S. Â 38- 431.03( A)( 3).â€ Similar state-ments
are not sufficient for other types of executive sessions. See Section 7.7 for fur-ther
discussion.
7.6.8 Combined Notice of Public Meeting and Executive Session. In many cases
the public body may want to have the option to retire into executive session during the
course of a public meeting. Although separate notices of the public meeting and ex-ecutive
session may be given pursuant to Sections 7.6.6 and 7.6.7, the public body may
choose to combine the notice of the public meeting and of the possible executive ses-sion
in one document. An example for doing so is set forth in Form 7.6 and the sam-ple
notice and agenda, Form 7.7.
7.6.9 Maintaining Records of Notice Given. Each public body should keep a record
of its notices, including a copy of each notice that was posted and information regarding
the date, time, and place of posting. A suggested procedure is to file in the records of
the public body a copy of the notice and a certification in a form similar to Form 7.8.
7.7 Agendas.
7.7.1 Generally. In addition to notice of the time, date, and place of the meeting, the
public body must provide an agenda of the matters to be discussed, considered, or de-cided
at the meeting. A. R. S. Â 38- 431.02( G). Although this Section provides guide-lines
for the preparation of agendas, it does not answer every question that will arise.
Specific problems should be discussed with the public bodyâ€™s legal counsel. A public
body should not have problems if it in good faith follows the Legislatureâ€™s declaration
of policy that agendas â€œ contain such information as is reasonably necessary to inform
the public of the matters to be discussed or decided.â€ A. R. S. Â 38- 431.09. If there is
a doubt, all questions should be resolved in favor of greater disclosure of information.
22
7.7.2 Contents of the Agenda â€” Public Meeting. The agenda for a public meeting
must contain a listing of the â€œ specific matters to be discussed, considered or decided
at the meeting.â€ A. R. S. Â 38- 431.02( H). This requirement does not permit the use of
generic agenda items such as â€œ personnel,â€ â€œ new business,â€ â€œ old business,â€ or â€œ other
mattersâ€ unless the specific matters or items to be discussed are separately identified.
See Thurston v. City of Phoenix, 157 Ariz. 343, 344, 757 P. 2d 619, 620 ( App. 1988).
The degree of specificity of the agenda depends on the circumstances. For example,
if an environmental board is going to consider the approval of pesticides for applica-tion
within 1/ 4 mile of a school, a listing such as â€œ Approval of pesticides for applica-tion
within 1/ 4 mile of a schoolâ€ is sufficient. However, if the board is going to
consider removing a pesticide from the approved list, the agency should specify the
pesticide being considered for removal. See Form 7.7 ( Sample Notice and Agenda).
If it is likely that the public body will find it necessary to discuss any particular
agenda item in executive session with the public bodyâ€™s attorney, the agenda should
plainly say so. For example, the agenda might include a provision stating â€œ The Board
may vote to hold an executive session for the purpose of obtaining legal advice from
the Boardâ€™s attorney on any matter listed on the agenda pursuant to A. R. S. Â 38-
431.03( A)( 3).â€
7.7.3 Contents of the Agendaâ€” Executive Session. The agenda for an executive
session must contain a â€œ general description of the matters to be consideredâ€ A. R. S. Â
38- 431.02( I). The description must amount to more than just a recital of the statuto-ry
provisions authorizing the executive session, but should not contain any informa-tion
that â€œ would defeat the purpose of the executive session, compromise the legitimate
privacy interests of a public officer, appointee or employee or compromise the attor-ney-
client privilege.â€ Id. In preparing executive session agenda items, the public body
must weigh the legislative policy favoring public disclosure and the legitimate confi-dentiality
concerns underlying the executive session provision. For example, if a board
desires to consider the possible dismissal of its executive director, the board may list
on the agenda â€œ Personnel matter â€” consideration of continued employment of the
boardâ€™s executive director.â€ However, when the public disclosure of the boardâ€™s con-sideration
of charges against an employee might needlessly harm the employeeâ€™s rep-utation
or compromise the employeeâ€™s privacy interests, the board may eliminate
from the agenda description the identity of the employee being considered. If it is al-ready
publicly known that the board is considering charges against the employee,
disclosure of the employeeâ€™s identity in the agenda would not defeat the purpose of
the executive session.
7.7.4 Distribution of the Agenda. The agenda may be made available to the public
by including it as part of the public notice or by stating in the public notice how the
public may obtain a copy of the agenda and then distributing the agenda in the man-ner
prescribed. A. R. S. Â 38- 431.02( G); see Forms 7.2 - 7.4, 7.6, 7.7.
Because both the public notice and the agenda must be available at least twenty-
23
four hours in advance of a meeting, the simplest procedure is to include the agenda
with the public notice. See Form 7.7 ( Sample Notice and Agenda).
However, when the public notice is issued well in advance of a meeting, as in the
case of notice of regularly scheduled meetings, see Section 7.6.6, it may be more ap-propriate
to state how the public may obtain a copy of the agenda and distribute it ac-cordingly.
7.7.5 Consent Agendas. Public bodies may use â€œ consent agendasâ€ so long as certain
requirements are met. Consent agendas are typically used as a time- saving device when
there are certain items on the agenda which are unlikely to generate controversy and
are ministerial in nature. Some examples are approval of travel requests and approval
of minutes. Public bodies often take one vote to approve or disapprove the consent
agenda as a whole. When using a consent agenda format for some of the items on a
meeting agenda, public bodies should fully describe the matters on the agenda and in-form
the public where more information can be obtained. A good practice is to require
that an item be removed from the consent agenda upon the request of any member of
the public body. See Form 7.7 ( Sample Notice and Agenda).
Public bodies should take caution when using consent agendas. The Arizona
Supreme Court has held that taking legal action, including that taken after an execu-tive
session, must be preceded by a disclosure of â€œ that amount of information suffi-cient
to apprise the public in attendance of the basic subject matter of the action so that
the public may scrutinize the action taken during the meeting â€¦ .â€ Karol v. Board of
Educ. Trustees, 122 Ariz. 95, 98, 593 P. 2d 649, 652 ( 1979). The court also specifically
condemned the practice of voting on matters designated only by number, thereby ef-fectively
hiding actions from public examination. Id.
7.7.6 Discussing and Deciding Matters Not Listed on the Agenda. The public body
may discuss, consider, or decide only those matters listed on the agenda and â€œ other mat-ters
related thereto.â€ A. R. S. Â 38- 431.02( H). The â€œ other mattersâ€ clause provides
some flexibility to a public body but should be used cautiously. The â€œ other mattersâ€
must in some reasonable manner be â€œ relatedâ€ to an item specifically listed on the agen-da.
Thurston v. City of Phoenix, 157 Ariz. 343, 344, 757 P. 2d 619, 620 ( App. 1988).
If a matter not specifically listed on the agenda is brought up during a meeting, the
better practice, and the one that will minimize subsequent litigation, is to defer dis-cussion
and decision on the matter until a later meeting so that the item can be â€œ specif-icallyâ€
listed on the agenda. If the matter demands immediate attention and is a true
emergency, the public body should consider using the emergency exception described
in Section 7.6.9.
7.7.7 Calls to the Public. In 2000, the Legislature clarified the limitations on open calls
to the public during public meetings. A. R. S. Â 38- 431.01( G) now provides that a pub-lic
body may make an open call to the public to allow individuals to address the pub-lic
body on any issue within the jurisdiction of the public body. Members of the public
24
body may not discuss or take action on matters raised during the call to the public that
are not specifically identified on the agenda. A. R. S. Â 38- 431.01( G). Public body
members may, however, respond to criticism made by those who have addressed the
public body, ask staff to review a matter, or ask that a matter be put on a future agen-da.
Id. See also Ariz. Attâ€™y Gen. Op. I99- 006.
The best practice is to include language similar to the following on the agenda to
explain in advance the reason members of the public body cannot respond to topics
brought up during the call to the public that are not on the agenda: â€œ Call to the Pub-lic:
This is the time for the public to comment. Members of the Board may not dis-cuss
items that are not specifically identified on the agenda. Therefore, pursuant to
A. R. S. Â 38- 431.01( G), action taken as a result of public comment will be limited to
directing staff to study the matter, responding to any criticism or scheduling the mat-ter
for further consideration and decision at a later date.â€
7.7.8 Current Event Summaries. The Open Meeting Law allows the chief adminis-trator
or presiding officer of a public body to present a brief summary of current
events without listing in the agenda the specific matters to be summarized, provided
that the summary is listed on the agenda and that the public body does not propose,
discuss, deliberate or take legal action at that meeting on any matter in the summary
unless the specific matter is properly noticed for legal action. A. R. S. Â 38- 431.02( K).
Public bodies should limit the use of this provision to appropriate situations and
should strive to provide as much advance information as possible to the public.
7.7.9 Emergencies. A public body may discuss, consider, and decide a matter not on
the agenda when an actual emergency exists requiring that the body dispense with the
advance notice and agenda requirements. A. R. S. Â 38- 431.02( D). See Section 7.6.5 for
a discussion of what constitutes an actual emergency.
To use the emergency exception, the public body must do several things. First, the
public body must give â€œ such notice as is appropriate to the circumstancesâ€ and must
â€œ post a notice within twenty- four hours declaring that an emergency session has been
heldâ€ and setting forth the same information as is required in an agenda for a regular
meeting. A. R. S. Â 38- 431.02( D); see Form 7.9.
Next, prior to the emergency discussion, consideration, or decision, the public
body must announce in a public meeting the reasons necessitating the emergency ac-tion.
A. R. S. Â 38- 431.02( J). If the emergency discussion or consideration is to take
place in an executive session, this public announcement must occur at a public meet-ing
prior to the executive session. Id.
Finally, the public body must place in the minutes of the meeting a statement of the
reasons for the emergency. Id. In the case of an executive session, this statement will
appear twice, once in the minutes of the public meeting where the reasons were pub-licly
announced, and again in the minutes of the executive session where the emergency
discussion or consideration took place. See Section 7.8.2( 7).
25
7.7.10 Changes to the Agenda. If a public body finds it necessary to change an agen-da
by modifying the listed matters or adding new ones, a new agenda must be prepared
and distributed in the same manner as the original agenda, at least twenty- four hours
in advance of the meeting. Ariz. Attâ€™y Gen. Op. I79- 45. Changes in the agenda with-in
twenty- four hours of the meeting may be made only in case of emergency. Ariz. Attâ€™y
Gen. Op. I79- 192; see Section 7.7.9.
7.8 Minutes.
Minutes must be taken of all public meetings and executive sessions, except that min-utes
need not be taken of meetings conducted by subcommittees and advisory com-mittees.
A. R. S. Â 38- 431.01( B).
7.8.1 Form of and Access to the Minutes. Minutes may be taken in writing or may
be recorded by a tape recorder or video tape recorder. A. R. S. Â 38- 431.01( B); see
Forms 7.10, 7.11. The minutes of a public meeting must be available for public in-spection
within three working days after the meeting. A. R. S. Â 38- 431.01( D). Public
bodies concerned about distributing minutes before they have been officially approved
at a subsequent meeting should mark the minutes â€œ draftâ€ or â€œ unapprovedâ€ and make
them available within three working days of the meeting. In no event should minutes
be withheld from the public pending approval. Minutes must be reduced to a form that
is readily accessible to the public. See id. If the minutes have been recorded by a me-chanical
recorder, allowing the public to have access to that recording is sufficient.
However, if the minutes were taken in shorthand, those minutes must be typed or writ-ten
out in longhand in order to comply with this requirement. See Form 7.10. The min-utes
of an executive session are confidential and may not be disclosed to anyone
except certain authorized persons. A. R. S. Â 38- 431.03( B); see Section 7.8.4. To ensure
confidentiality, minutes of executive sessions should be stored separately from regu-lar
session minutes to avoid inadvertent disclosure.
7.8.2 Contents of the Minutes of Public Meetings. The minutes of a public meet-ing
must contain the following information:
1. â€œ The date, time and place of the meeting.â€ A. R. S. Â 38- 431.01( B)( 1).
2. â€œ The members of the public body recorded as either present or absent.â€ Id. Â
( B)( 2).
3. â€œ A general description of the matters [ discussed or] considered.â€ Id. Â ( B)( 3).
Minutes must contain information regarding matters considered or discussed at the
meeting even though no formal action or vote was taken with respect to the mat-ter.
See id. Â ( B)( 4).
4. â€œ An accurate description of all legal actions proposed, discussed or taken and the
names of persons who proposed each motion.â€ Id. Â ( B)( 4). This does not require
that the name of each person who votes on a motion be indicated, but only that the
26
member who proposed it be shown in the minutes. Generally, however, the agency,
for its own benefit, will include the names of the member who seconded and
those who voted in favor of or against the motion. In any case, it is wise for the
minutes to reflect how the body voted and the numerical breakdown of the vote,
e. g., 3 in favor, 1 against, 1 abstention.
5. The name of each person â€œ making statements or presenting material to the pub-lic
body and a [ specific] reference to the legal action,â€ ( see item 4) to which the
statement or presentation relates. Id.
6. If the discussion in the public session did not adequately disclose the subject mat-ter
and specifics of the action taken, the minutes of the public meeting at which
such action was taken should contain sufficient information to permit the public
to investigate further the background or specific facts of the decision. See Section
7.7.5; Karol v. Board of Educ. Trustees, 122 Ariz. 95, 593 P. 2d 649 ( 1979).
7. If matters not on the agenda were discussed or decided at a meeting because of an
actual emergency, the minutes must contain a full description of the nature of the
emergency. A. R. S. Â 38- 431.02( J); see Sections 7.6.5 and 7.7.9.
8. If a prior act was ratified, the minutes must contain a copy of the disclosure state-ment
required for ratification. A. R. S. Â 38- 431.05( B)( 3); see Section 7.11.2; Form
7.10.
7.8.3 Contents of the Minutes of Executive Sessions. The minutes of executive ses-sions
must contain the following information:
1. â€œ The date, time and place of the meeting.â€ A. R. S. Â 38- 431.01( B)( 1), ( C).
2. â€œ The members of the public body recorded as either present or absent.â€ Id. Â
( B)( 2), ( C).
3. â€œ A general description of the matters considered.â€ Id. Â ( B)( 3), ( C); see Section
7.8.2( 3).
4. An accurate description of all instructions given to attorneys or designated repre-sentatives
pursuant to A. R. S. Â 38- 431.03( A)( 4), ( 5) and ( 7). See Sections 7.9.7,
7.9.8 and 7.9.10.
5. A statement of the reasons for emergency consideration of any matters not on the
agenda. See A. R. S. Â 38- 431.02( J); Section 7.8.2( 7).
6. Such other information as the public body deems appropriate. For example, the
public body might record in its minutes that those present were advised that the
information discussed in the session and the session minutes are confidential. See
Form 7.11.
Arizona courts have held that once a complainant alleges facts from which a reason-able
inference may be drawn supporting an Open Meeting Law violation, the burden
of proof immediately shifts to a public body to prove that an affirmative defense or ex-ception
to the Open Meeting Law authorized an allegedly inappropriate executive
session. Fisher v. Maricopa County Stadium Dist., 185 Ariz. 116, 122, 912 P. 2d 1345,
1351 ( App. 1995). Hence, the best practice is for public bodies to tape record or keep
27
detailed minutes of executive sessions in order to ensure that they are prepared to meet
their burden of proof in the event a lawsuit is filed.
7.8.4 Confidentiality of Executive Session Minutes. The minutes of an executive ses-sion
and all discussions that take place at an executive session are confidential and may
not be disclosed to anyone, A. R. S. Â 38- 431.03( B), except that they may be disclosed
to the following people:
1. Any member of the public body that met in the executive session and members who
did not attend the executive session. A. R. S. Â 38- 431.03( B)( 1); Picture Rocks Fire
Dist. v. Updike, 145 Ariz. 79, 699 P. 2d 1310 ( App. 1985).
2. Any officer, appointee, or employee who was the subject of discussion at an ex-ecutive
session authorized by A. R. S. Â 38- 431.03( A)( 1) may see those portions of
the minutes directly pertaining to them. A. R. S. Â 38- 431.03( B)( 2); see Section
7.9.4.
3. Staff personnel, to the extent necessary for them to prepare and maintain the min-utes
of the executive session.
4. The attorney for the public body, to the extent necessary for the attorney to rep-resent
the public body.
5. The Auditor General in connection with the lawful performance of its duty to
audit the finances or performance of the public body. A. R. S. Â 38- 431.03( B)( 3);
Ariz. Attâ€™y Gen. Op. I79- l30.
6. The Attorney General or County Attorney when investigating alleged violations
of the Open Meeting Law. A. R. S. Â 38- 431.03( B)( 4).
7. The court, for purposes of a confidential inspection. A. R. S. Â 38- 431.07( C).
The Open Meeting Law requires that a public body advise all persons attending an ex-ecutive
session or obtaining access to executive session minutes or information that
such minutes and information are confidential. A. R. S. Â 38- 431.03( C). Public bodies
should maintain executive session minutes in a secure file separate from the public
meeting minutes to guard against accidental disclosure.
7.9 Executive Sessions.
Section 38- 431.03, A. R. S., contains an exception to the general requirement of the
Open Meeting Law that all meetings must be open to the public. That Section provides
seven specific instances in which a public body may discuss matters in an executive
session. An executive session is defined as â€œ a gathering of a quorum of members of
a public body from which the public is excluded for one or more of the reasons pre-scribed
in [ A. R. S. Â 38- 431.03].â€ A. R. S. Â 38- 431( 2). An executive session may be con-vened
solely for the purpose of discussing matters and, in limited instances, giving
instructions to attorneys and designated representatives. A. R. S. Â 38- 431.03( D). No
legal action may be taken in the executive session. Id.
28
Arizona courts have strictly construed the seven authorized executive session top-ics
because their legislative charge is to â€œ promote openness in government, not to ex-pand
exceptions which could be used to obviate the rule.â€ See Fisher v. Maricopa
County Stadium Dist., 185 Ariz. 116, 124, 912 P. 2d 1345, 1353 ( App. 1995). Thus, un-less
the proposed discussion plainly falls within one of the Open Meeting Law exec-utive
session topics or is specifically authorized by the public bodyâ€™s enabling
legislation, discussion should take place only in a public meeting.
In litigation, the burden of proof is initially on the complainant to â€œ allege facts from
which a reasonable inference may be drawn supporting an Open Meeting Law viola-tion.â€
Id., 185 Ariz. at 122, 912 P. 2d at 1351. The burden then immediately shifts to
the public body to prove that an affirmative defense or exception to the Open Meet-ing
Law authorized the executive session. Id.
7.9.1 Deciding to Go Into Executive Session. Before a public body may go into ex-ecutive
session, a majority of the members constituting a quorum must vote in a pub-lic
meeting to hold the executive session. A. R. S. Â 38- 431.03( A). Generally, the vote
will be taken immediately before going into executive session. However, in some
cases an agency may know that at a future date it will need to meet in executive ses-sion,
in which case it can then vote at the public meeting to meet on the later date in
executive session. On that future date, the agency does not have to first meet again in
a public session.
7.9.2 Executive Session Requirements. Once the majority of members of a public
body has voted to hold an executive session, the chairman of the public body should
ask the public to leave and remove all materials such as briefcases and backpacks to
ensure that no recording devices have been left in the room. All persons must leave
the meeting except the members of the public body and those individuals whose pres-ence
is reasonably necessary for the public body to carry out its executive session re-sponsibilities.
A. R. S. Â 38- 431( 2). The chairman should remind all present that the
business conducted in executive sessions is confidential pursuant to A. R. S. Â 38-
431.03( C).
7.9.3 Authorized Executive Sessions. The Open Meeting Law permits only seven cat-egories
of topics to be discussed in executive session. A. R. S. Â 38- 431.03( A). These
seven categories are discussed in Sections 7.9.4 - 7.9.10. Because courts are likely to
strictly construe these provisions, unless the proposed discussion plainly falls within
an executive session category it should take place only in a public meeting. Finally,
the Open Meeting Law does not require that these discussions take place in executive
session. If public disclosure of the public bodyâ€™s discussion is not prohibited by any
other statutory provision and government interests are not threatened, a public body
may choose to conduct its discussions in a public setting.
7.9.4 Personnel Matters. The discussion or consideration of employment, assignment,
29
appointment, promotion, demotion, salaries, discipline, resignation, or dismissal of a
public officer, appointee, or employee of a public body may take place in an execu-tive
session. A. R. S. Â 38- 431.03( A)( 1); City of Flagstaff v. Bleeker, 123 Ariz. 436, 600
P. 2d 49 ( App. 1979). This authorization for an executive session applies only to dis-cussions
concerning specific officers, appointees, and employees. This provision per-mits
discussion in executive session of applicants for employment or appointment even
though the applicants may not be currently employed by the public body.
If the affected officer, appointee, or employee requests, these discussions must be
conducted in a public meeting and not in an executive session. A. R. S. Â 38-
431.03( A)( 1). Accordingly, the Open Meeting Law requires that an officer, appointee,
or employee who is the subject of the discussion in executive session must be given
advance written notice of the proposed executive session. Id. The notice given to the
officer, appointee, or employee must describe the matters to be considered by the
public body in a manner sufficient to enable the employee to make the initial decision
whether to have the matters discussed in a public meeting. Id. In addition, the written
notice must be given sufficiently in advance of the proposed meeting, and in no event
less than twenty- four hours prior to the meeting, to enable the employee to make the
foregoing determination and to prepare an appropriate request for a public meeting.
Id.; see Ariz. Attâ€™y Gen. Op. I79- 49. See also Form 7.13. There is no emergency ex-ception
to the requirement that an affected officer, appointee, or employee receive at
least twenty- four hoursâ€™ notice. However, the public body can discuss personnel mat-ters
in a public meeting with less than twenty- four hoursâ€™ notice if an actual emergency
exists. A. R. S. Â 38- 431.02( D). See Sections 7.6.5 and 7.7.9.
Although the public body may permit the public officer, appointee, or employee
being discussed to attend the executive session, the Open Meeting Law is unclear
whether he has the right to attend. Whether he attends or not, the public body must
make the minutes of the executive session available to the public officer, appointee,
or employee who was the subject of discussion in the executive session. A. R. S. Â 38-
431.03( B)( 2).
A public body may consider several persons for possible appointment to a position
or consider several employees for possible disciplinary action. In such cases, the pub-lic
body may consider the matter in executive session provided all those being con-sidered
are given the required notice. If some, but not all of those given notice request
a public meeting, the public body has two options: the public body may limit the pub-lic
discussion to those persons filing the request and discuss the remaining persons in
an executive session; or, because the Open Meeting Law does not require the public
body to discuss personnel matters in executive session, the public body may discuss
the entire matter in a public meeting.
Public bodies should take care to ensure that the scope of executive sessions for per-sonnel
discussions is limited to true personnel matters. The Attorney General has
opined that the Open Meeting Law prohibits public bodies from conducting in exec-utive
sessions lengthy information gathering meetings that explore the operation of pub-lic
programs under the guise of conducting a personnel evaluation. Only the actual
30
evaluationâ€” discussion or consideration of the performance of the employeeâ€” may
take place in an executive session. Ariz. Attâ€™y Gen. Op. I96- 012. A public body that
wishes to discuss or consider an employeeâ€™s evaluation in executive session, pursuant
to A. R. S. Â 38- 431.03( A)( 1), should adopt a bifurcated process that would permit the
public body to gather information about public programs at a public meeting, while
allowing the public body to enter executive session to discuss or consider the actual
evaluation. Ariz. Attâ€™y Gen. Op. I96- 012.
7.9.5 Confidential Records. An executive session may be held when the public body
is considering or discussing â€œ records exempt by law from public inspection.â€ A. R. S.
Â 38- 431.03( A)( 2). This specifically includes situations in which the public body is
receiving and discussing â€œ information or testimony that is specifically required to be
maintained as confidential by state or federal law.â€ Id. This provision allows the use
of an executive session whenever the public body intends to discuss or consider mat-ters
contained in records that are confidential by law. See Ariz. Attâ€™y Gen. Ops. I90-
058, I87- 131. However, when confidential matters can be adequately safeguarded, the
discussion may take place during a public meeting. Cf. Ariz. Attâ€™y Gen. Op. I87- 038
( medical records). The record being considered need not be expressly made confi-dential
by statute, but rather may fall within the category of confidential records dis-cussed
in Chapter 6 of this handbook. For example, to preserve confidentiality,
preliminary audit reports of state agencies prepared by the Auditor General are con-fidential
and should be discussed by the public body in executive session. Ariz. Attâ€™y
Gen. Op. I80- 035. Similarly, complaints against licensees that are investigated by a
public body may be discussed in executive session. Ariz. Attâ€™y Gen. Op. I83- 006. In
2000, the Legislature revised the statute to allow public bodies to take testimony in ex-ecutive
sessions in certain situations. Public bodies should ensure that state or feder-al
law requires that the public body maintain confidentiality of the information it
receives before convening an executive session under A. R. S. Â 38- 431.03( A)( 2).
7.9.6 Legal Advice. A public body may also go into executive session for the purposes
of â€œ discussion or consultation for legal advice with the attorney or attorneys of the pub-lic
body.â€ A. R. S. Â 38- 431.03( A)( 3). For this exemption to apply, the attorney giving
the legal advice must be the attorney for the public body. Id. For purposes of this dis-cussion,
the â€œ attorney for the public bodyâ€ means a licensed attorney representing the
public body, whether that attorney is a full time employee of the body, the attorney gen-eral
or county, city, or town attorney responsible for representing the public body, an
attorney hired on contract, or an attorney provided by an insurance carrier to represent
the public body.
This provision authorizes consultations between a public body and its attorney. Ac-cordingly,
the only persons allowed to attend this executive session are the members
of the public body, the public bodyâ€™s attorney, and those employees and agents of both
whose presence is necessary to obtain the legal advice. The mere presence of an at-torney
of the public body in the meeting room is not sufficient to justify the use of this
31
executive session provision. This provision can only be used for the purpose of ob-taining
â€œ legal advice,â€ which involves the exchange of communications between
lawyer and client. Once the legal advice has been obtained, the public body must go
back into public session unless some other executive session provision applies and has
been identified in the notice. See City of Prescott v. Town of Chino Valley, 166 Ariz.
480, 803 P. 2d 891 ( 1990). Discussion between the members of the public body about
what action should be taken is beyond the realm of legal advice, and such discussions
must be held in public session.
7.9.7 Litigation, Contract Negotiations, and Settlement Discussions. A public
body may hold an executive session for the purpose of â€œ[ d] iscussion or consultation
with the attorneys of the public body in order to consider its position and instruct its
attorneys regarding the public bodyâ€™s position regarding contracts that are the subject
of negotiations, in pending or contemplated litigation or in settlement discussions
conducted in order to avoid or resolve litigation.â€ A. R. S. Â 38- 431.03( A)( 4). This
provision allows consideration and instruction onlyâ€” it does not allow a public body
to conduct contract negotiations or settlement discussions in an executive session.
This provision allows a public body to give its attorneys instructions on how they
should proceed in contract negotiations, pending or contemplated litigation involving
the public body, and settlement discussions. For example, the public body might au-thorize
its attorney to settle a lawsuit on the most favorable terms possible up to a cer-tain
amount. Of course, if the attorney were to obtain an agreed settlement, the public
body must formally approve it at a public meeting.
This provision is unique in that it permits public bodies to â€œ instructâ€ their attorneys.
In these limited situations, the public body must be able to discuss and arrive at some
consensus on its position before it instructs its legal counsel. Executive session min-utes
must contain an accurate description of all instructions given. A. R. S. Â 38-
431.01( C).
The discussion in Section 7.9.6 of the definition of â€œ attorney for the public bodyâ€
applies with equal force to this Section.
7.9.8 Employee Salary Discussions. A public body may hold an executive session for
the purpose of â€œ[ d] iscussions or consultations with designated representatives of the
public body in order to consider its position and instruct its representatives regarding
negotiations with employee organizations regarding the salaries, salary schedules or
compensation paid in the form of fringe benefits of employees of the public body.â€
A. R. S. Â 38- 431.03( A)( 5). This provision permits a public body, in executive session,
to consult and discuss with its representatives its position on negotiating salaries or
compensation paid in the form of fringe benefits and instruct representatives on how
they should deal with the employee organizations. It does not authorize an executive
session for purposes of meeting with the employeesâ€™ representative. If the public body
or any standing, special, or advisory committee or subcommittee of the public body
conducts the negotiations, those negotiations must be conducted in a public meeting.
32
This provision also allows the public body to â€œ instructâ€ its representatives. The dis-cussion
in Section 7.9.7 of the practice of confirming instructions in public session and
the minute- taking requirements applies with equal force to this Section.
7.9.9 International, Interstate, and Tribal Negotiations. A public body may go
into executive session for the purpose of â€œ[ d] iscussion, consultation, or consideration
for international and interstate negotiations.â€ A. R. S. Â 38- 431.03( A)( 6). This provision
does not apply to meetings at which the public body receives recommendations from
representatives of federal agencies. Ariz. Attâ€™y Gen. Op. I80- 159.
This provision also permits a city or town, or its designated representatives, to
enter into executive session with â€œ members of a tribal council, or its designated rep-resentatives,
of an Indian reservation located within or adjacent to the city or town.â€
A. R. S. Â 38- 431.03( A)( 6). This is the only type of executive session in which nego-tiations
with another party can take place.
7.9.10 Purchase, Sale or Lease of Real Property. A public body may meet in exec-utive
session to discuss and consult with its representatives concerning negotiations
for the purchase, sale, or lease of real property. A. R. S. Â 38- 431.03( A)( 7). This pro-vision
does not authorize an executive session for the purpose of meeting with repre-sentatives
of the party with whom the public body is negotiating. This provision
permits the public body to instruct its representatives regarding the purchase, sale or
lease. For example, the public body can authorize its representative to negotiate up to
a certain amount. Of course, the final contract must be approved by the public body
in a public meeting.
This provision also allows the public body to â€œ instructâ€ its representatives. The dis-cussion
in Section 7.9.7 of the practice of confirming instructions in public session and
the minute- taking requirements applies with equal force to this Section.
7.9.11 Taking Legal Action. In an executive session, the public body may discuss and
consider only the specific matters authorized by the statute. Furthermore, the public
body may not take a vote or make a final decision in the executive session, but rather
must reconvene in a public meeting for purposes of taking the binding vote or mak-ing
final decisions. Taking a straw poll or informal or preliminary vote in executive
session is unlawful under the Open Meeting Law. See A. R. S. Â 38- 431.03( D).
7.10 Public Access to Meetings.
7.10.1 Public Participation and Access. The public must be allowed to attend and
listen to deliberations and proceedings taking place in all public meetings, A. R. S. Â
38- 431.01( A); however, the Open Meeting Law does not establish a right for the pub-lic
to participate in the discussion or in the ultimate decision of the public body, Ariz.
Attâ€™y Gen. Op. 78- 1. Other statutes may, however, require public participation or
33
public hearings. For example, before promulgating rules, state agencies must permit
public participation in the rule making process, including the opportunity to present
oral or written statements on the proposed rule. See Chapter 11. See also Section
7.7.2 for a discussion of the authorization ( but not requirement) for public bodies to
use an open call to the public.
The public body must provide the public with access to all public meetings. See
A. R. S. Â 38- 431.01( A). This requirement is not met if the public body invokes any pro-cedure
or device that obstructs or inhibits public attendance at public meetings, such
as requiring persons to sign in before they are permitted to attend the meeting or
holding the meeting in a remote location, in a room too small to accommodate the rea-sonably
anticipated number of observers, in a place to which the public does not have
access, such as private clubs, or at an unreasonable time, such as 6: 00 A. M. The Open
Meeting Law, however, does not prevent a public body from requiring persons who
intend to speak at the meeting to sign a register so as to permit the public body to com-ply
with the minute- taking requirements. See Section 7.8.2( 5).
In addition to complying with the Open Meeting Law, the notice and accommo-dations
should conform with the provisions of the Americans with Disabilities Act
( ADA), 42 U. S. C. Â Â 12101 - 12213 ( Supp. 1992). See Sections 15.25.2 - 15.25.5. The
public body may want to include a statement such as the following in any notice it is-sues:
â€œ Persons with a disability may request a reasonable accommodation, such as a
sign language interpreter, by contacting [ name of designated agency contact person]
at [ telephone number and TDD telephone number]. Requests should be made as early
as possible to allow time to arrange the accommodation.â€
7.10.2 Telephone Conferences. If one or more members of a public body are unable
to be present in person at a public meeting, they may nevertheless participate by tele-phone
or video conference if the practice is approved by the public body and is not
prohibited by statutes applicable to meetings of the public body. Ariz. Attâ€™y Gen.
Ops. I91- 033, I83- 135. This practice presents several practical and legal problems and
should be used only where there are no reasonable alternatives to presence at the
meeting.
A public body must comply with the following guidelines to avoid violations of the
Open Meeting Law.
1. The notice and the agenda should state that one or more members of the public
body will participate by telephonic or video communications. In the appropriate
notice, insert the following after the first sentence: â€œ Members of the [ name of pub-lic
body] will attend either in person or by telephone conference call.â€
2. The public meeting place where the public body normally meets should have fa-cilities
that permit the public to observe and hear all telephone or video commu-nications.
3. The public body should develop procedures for clearly identifying all members par-ticipating
by telephonic or video communications.
4. The minutes of the meeting should identify the members participating by tele-
34
phonic or video communications and describe the procedures followed to provide
the public access to all communications during the meeting.
7.10.3 Recording the Proceedings. â€œ All or any part of a public meeting â€¦ may be
recorded by any person in attendance by means of a tape recorder, camera or other
means of sonic reproduction.â€ A. R. S. Â 38- 431.01( E). A public body may prohibit or
restrict such recordings only if they actively interfere with the conduct of the meet-ing.
Id.
7.11 Ratification.
7.11.1 Generally. A public body may ratify action previously taken in violation of the
Open Meeting Law. See A. R. S. Â 38- 431.05( B). Ratification is appropriate when the
public body needs to retroactively validate a prior act in order to preserve the earlier
effective date of the action. For example, a public body may be required by law to ap-prove
its budget by a certain date. If the public body discovered after the statutory dead-line
that its earlier approval violated the Open Meeting Law, it could face serious legal
problems. Even if the body met quickly to properly approve the budget, the approval
would not have been made prior to the statutory deadline. Accordingly, the 1982
amendments permit the public body to meet and approve retroactively the action pre-viously
taken â€” that is, to ratify its prior action.
Ratification merely validates the prior action; it does not eliminate liability of the
public body or others for sanctions under the Open Meeting Law, such as civil penal-ties
and attorneyâ€™s fees.
7.11.2 Procedure for Ratification. The Open Meeting Law provides a detailed pro-cedure
for ratification. A. R. S. Â 38- 431.05( B). That procedure is as follows:
1. The decision to ratify must take place at a public meeting held in accordance with
the Open Meeting Law.
2. The decision to ratify must be taken within thirty days after discovery of the vio-lation
or after such discovery should have been made by the exercise of reasonable
diligence. A complaint from the public or the press that a public body has violat-ed
the Open Meeting Law should be investigated promptly, as a court may view
this communication as the â€œ discoveryâ€ from which the thirty day period runs.
3. The public notice of the meeting at which ratification is to take place, in addition
to complying with the other requirements of the Open Meeting Law, see Sections
7.6 and 7.7, must include ( a) a description of the action to be ratified, ( b) a clear
statement that the public body proposes to ratify a prior action, and ( c) informa-tion
on how the public may obtain a written description of the action to be ratified.
See Form 7.12.
4. In addition to the notice and agenda of the meeting, the public body must make
available to the public a detailed written description of the action to be ratified and
35
a description of all prior deliberations, consultations, and decisions by members
of the public body related to the action to be ratified.
5. The description required under paragraph 4 must be included as part of the min-utes
of the meeting at which the decision to ratify was made.
6. The public notice, agenda, and written description discussed in paragraphs 3 and
4 must be made available to the public at least seventy- two hours prior to the
public meeting.
7.12 Sanctions for Violations of the Open Meeting Law.
7.12.1 Nullification. All legal action transacted by any public body during a meeting
held in violation of any provision of the Open Meeting Law is null and void unless sub-sequently
ratified. A. R. S. Â 38- 431.05. The procedures for ratification are described
in Section 7.11.2.
The Arizona Supreme Court, however, has held that legal actions taken in violation
of the Open Meeting Law are voidable at the discretion of the court. Karol v. Board
of Educ. Trustees, 122 Ariz. 95, 97, 593 P. 2d 649, 651 ( 1979). In the Karol case, the
court held that: â€œ[ A] technical violation having no demonstrated prejudicial effect on
the complaining party does not nullify all the business in a public meeting when to con-clude
otherwise would be inequitable, so long as the meeting complies with the intent
of the legislature.â€ Id., 122 Ariz. at 98, 593 P. 2d at 652. This decision imposes a sub-stantial
compliance test and requires a weighing of the equities before a court will de-clare
an action void. The decision, however, preceded the 1982 amendment to the Open
Meeting Law which specifically authorizes a procedure for ratification. It remains to
be seen whether this change will cause the court to follow the literal language of the
Open Meeting Law. Nevertheless, the serious consequences that flow from having an
action of a public body declared void should serve to remind the public body that it
should take every precaution to avoid even technical violations of the Open Meeting
Law.
In some cases, the public body may have discussed a matter at an unlawful meet-ing,
but thereafter met in a lawful open meeting at which it took a formal vote as its
â€œ final action.â€ The Arizona Court of Appeals has held that the subsequent â€œ final ac-tionâ€
taken at a lawful meeting is not void. Valencia v. Cota, 126 Ariz. 555, 6l7 P. 2d
63 ( App. 1980). The public body taking the final action at the subsequent lawful
meeting should make available at that time the substance of all discussions that took
place at the earlier unlawful meeting. If the public body wishes to preserve the effec-tive
date of the earlier action rather than simply redecide the matter, it must go through
the ratification process. See Section 7.11.
7.12.2 Investigation and Enforcement. The 2000 Legislature enacted substantial re-visions
to the Open Meeting Law, including extensive changes to the investigation and
enforcement provisions of the law. The Attorney General and County Attorneys are
36
authorized to investigate alleged Open Meeting Law violations. A. R. S. Â 38- 431.06.
The Open Meeting Law now specifically provides that the Attorney General and
County Attorneys shall have access to executive session minutes when they are in-vestigating
alleged violations of the Open Meeting Law. A. R. S. Â 38- 431.03( B)( 4). The
Open Meeting Law also provides that disclosure of executive session information
( such as disclosure to the Attorney General) does not constitute a waiver of the attor-ney-
client privilege and directs courts reviewing executive session information to pro-tect
privileged information. Id. Â ( F).
The investigative authority of the Attorney General and County Attorneys was
strengthened by the 2000 Legislature. The Attorney General and County Attorneys may
issue written investigative demands to any person, administer oaths or affirmations to
any person for the purpose of taking testimony, conduct examinations under oath, ex-amine
accounts, books, computers, documents, minutes, papers and recordings, and
require people to file written statements, under oath, of all the facts and circumstances
requested by the Attorney General or County Attorney. A. R. S. Â 38- 431.06( B). If a per-son
fails to comply with a civil investigative demand, the Attorney General or Coun-ty
Attorney may seek enforcement of the demand in Superior Court.
Any person affected by â€œ legal actionâ€ of a public body, the Attorney General, or
the County Attorney for the county in which the alleged violation occurred, may file
suit in superior court to require compliance with or prevent violations of the Open
Meeting Law or to determine whether the law is applicable to certain matters or legal
actions of the public body. A. R. S. Â 38- 431.07.
Additionally, when the provisions of the Open Meeting Law have not been com-plied
with, a court of competent jurisdiction may issue a writ of mandamus requiring
a meeting to be open to the public. A. R. S. Â 38- 431.04. A writ of mandamus is an order
of the court compelling a public officer to comply with certain mandatory responsi-bilities
imposed by law.
7.12.3 Civil Penalties. The court may impose a civil penalty not exceeding five hun-dred
dollars against any person for each violation of the Open Meeting Law. A. R. S.
Â 38- 431.07( A). This penalty can be assessed against a person who violates the Open
Meeting Law or who knowingly aids, agrees to aid or attempts to aid another person
in violating the Open Meeting Law. Id. This penalty is assessed against the individ-ual
and not the public body, and the public body may not pay the penalty on behalf
of the person assessed, see id.
7.12.4 Attorneyâ€™s Fees. The court may also order payment of reasonable attorneyâ€™s
fees to a successful plaintiff in an enforcement action brought under the Open Meet-ing
Law. A. R. S. Â 38- 431.07( A). Normally those fees will be paid by the state or po-litical
subdivision of which the public body is a part or to which it reports. Id. However,
if the court determines that a public officer violated the Open Meeting Law â€œ with in-tent
to deprive the public of information or of the opportunity to be heard,â€ the court
must assess against that public officer or a person who knowingly aided, agreed to aid
37
or attempted to aid the public officer in violating the Open Meeting Law all of the costs
and attorneyâ€™s fees awarded to the plaintiff. Id. As in the case of an award of civil penal-ties,
the public body may not pay such an award of attorneyâ€™s fees assessed against the
public officer individually. See id.
7.12.5 Expenditure for Legal Services by Public Body Relating to the Open Meet-ing
Law. A public body may not retain counsel or expend monies for legal services
to defend an action brought under the Open Meeting Law unless the public body has
legal authority to make such an expenditure pursuant to other provisions of law and
it approves the expenditure at a properly noticed open meeting prior to incurring the
obligation. A. R. S. Â 38- 431.07( B).
7.12.6 Removal From Office. If the court determines that a public officer violated the
Open Meeting Law â€œ with intent to deprive the public of information or of the oppor-tunity
to be heard,â€ the court may remove the public officer from office. A. R. S. Â 38-
431.07( A).
38
Form 7.1
Disclosure Statement
Section 7.6.3.1
STATEMENT OF LOCATIONS WHERE ALL NOTICES OF THE
MEETINGS OF THE [ NAME OF PUBLIC BODY] WILL BE POSTED
TO: THE HONORABLE SECRETARY OF STATE and THE CITIZENS OF
ARIZONA
Pursuant to A. R. S. Â 38- 431.02, the [ name of public body] hereby states that all no-tices
of the meetings of the [ name of public body] and any of its committees and sub-committees
will be posted [ identify the location where notices will be posted and
include the hours during which such locations are open to the public, for example, â€œ in
the lobby of the State Capitol located at 1700 West Washington, Phoenix, Arizona, and
at the press room of the State Senate Building, 1700 West Washington, Phoenix, Ari-zona.
Both locations are open to the public Monday through Friday from 8: 00 a. m. to
5: 00 p. m. except legal holidays.â€] Such notices will indicate the date, time, and place
of the meeting and will include an agenda or information concerning the manner in
which the public may obtain an agenda for the meeting.
Dated this ____ day of _______________, 20____.
[ name of public body]
By [ authorized signature]
39
Form 7.2
Notice of Public Meeting of a Public Body
Sections 7.6.3, 7.7.4, 7.10.1
NOTICE OF PUBLIC MEETING OF THE [ NAME OF PUBLIC BODY]
Pursuant to A. R. S. Â 38- 431.02, notice is hereby given to the members of the [ name
of public body] and to the general public that the [ name of public body] will hold a
meeting open to the public on [ date, time, and exact location].
The agenda for the meeting is as follows:
[ List the specific matters to be discussed, considered, or decided.
See Form 7.7 ( Sample Notice and Agenda)]
[ OR]
A copy of the agenda for the meeting will be available at [ location where the agenda
will be available] at least twenty- four hours in advance of the meeting.
Dated this ____ day of _______________, 20____.
[ name of public body]
By [ authorized signature]
Persons with a disability may request a reasonable accommodation, such as a sign lan-guage
interpreter, by contacting [ name, telephone number, TDD telephone number].
Requests should be made as early as possible to arrange the accommodation.
40
Form 7.3
Notice of Public Meeting of a Subcommittee or Advisory Committee
of a Public Body
Sections 7.6.3, 7.10.1
NOTICE OF MEETING OF THE [ NAME OF SUBCOMMITTEE
OR ADVISORY COMMITTEE] OF THE [ NAME OF PUBLIC BODY]
Pursuant to A. R. S. Â 38- 431.02, notice is hereby given to the members of the [ name
of committee] of the [ name of public body] and to the general public that the [ name
of committee] of the [ name of public body] will hold a meeting open to the public on
the [ date, time, and exact location].
The agenda for the meeting is as follows:
[ List the specific matters to be discussed, considered or decided.
See Form 7.7 ( Sample Notice and Agenda)]
[ OR]
A copy of the agenda for the meeting will be available at [ location where the agenda
will be available] at least twenty- four hours in advance of the meeting.
Dated this ____ day of _______________, 20____.
[ name of public body]
By [ authorized signature]
Persons with a disability may request a reasonable accommodation, such as a sign lan-guage
interpreter, by contacting [ name, telephone number, TDD telephone number].
Requests should be made as early as possible to arrange the accommodation.
41
Form 7.4
Notice of Regular Meetings of a Public Body
Sections 7.6.3, 7.6.6, 7.7.4, and 7.10.1
NOTICE OF REGULAR MEETINGS OF THE [ NAME OF PUBLIC BODY]
Pursuant to A. R. S. Â 38- 431.02( F), notice is hereby given to the members of the
[ name of public body] and to the general public that the [ name of public body] will
hold regular meetings on the [ specific day of month] of each month during the year
[ year]. The meetings will begin at [ time] and will be held at [ exact location].
A copy of the agenda for the meeting will be available at [ location where the agenda
will be available] at least twenty- four hours in advance of the meeting.
Dated this ____ day of _______________, 20____.
[ name of public body]
By [ authorized signature]
Persons with a disability may request a reasonable accommodation, such as a sign lan-guage
interpreter, by contacting [ name, telephone number, TDD telephone number].
Requests should be made as early as possible to arrange the accommodation.
42
Form 7.5
Notice of Meeting and Possible Executive Session of a Public Body
Sections 7.6.8 and 7.10.1
NOTICE OF MEETING AND POSSIBLE EXECUTIVE SESSION
OF THE [ NAME OF PUBLIC BODY]
Pursuant to A. R. S. Â 38- 431.02, notice is hereby given to the members of the [ name
of public body] and to the general public that the [ name of public body] will hold a
meeting open to the public on [ date, time, and exact location] for the purpose of de-ciding
whether to go into executive session. If authorized by a majority vote of the
[ name of public body], the executive session will be held immediately after the vote
and will not be open to the public.
The agenda for the meeting is as follows:
[ Include a general description of the matters to be discussed or considered, but exclude
information that would defeat the purpose of the executive session. See Form 7.7
( Sample Notice and Agenda)]
[ OR]
A copy of the agenda for the meeting will be available at [ location where the agenda
will be available] at least twenty- four hours in advance of the meeting.
This executive session is authorized under A. R. S. Â 38- 431.03, Subsection ( A), para-graph
[ list applicable provision].
Dated this ____ day of _______________, 20____.
[ name of public body]
By [ authorized signature]
Persons with a disability may request a reasonable accommodation, such as a sign lan-guage
interpreter, by contacting [ name, telephone number, TDD telephone number].
Requests should be made as early as possible to arrange the accommodation.
43
Form 7.6
Notice of Combined Public Meeting and Executive Session
Sections 7.6.8, 7.7.4, and 7.10.1
NOTICE OF COMBINED PUBLIC MEETING AND EXECUTIVE
SESSION OF [ NAME OF PUBLIC BODY]
Pursuant to A. R. S. Â 38- 431.02, notice is hereby given to the members of the [ name
of public body] and to the general public that the [ name of public body] will hold a
meeting open to the public on [ date, time, and exact location]. As indicated in the agen-da,
pursuant to A. R. S. Â 38- 431.03( A)( X), the [ name of public body] may vote to go
into executive session, which will not be open to the public, to discuss certain matters.
The agenda for the meeting is as follows:
[ List the specific matter to be discussed, considered, or decided. See Form
7.7 ( Sample Notice and Agenda). Identify those matters that may be dis-cussed
or considered in executive session and identify the paragraph of
A. R. S. Â 38- 431.03( A) authorizing the executive session, but exclude in-formation
that would defeat the purpose of the executive session.]
[ OR]
A copy of the agenda for the meeting will be available at [ location where the agenda
will be available] at least twenty- four hours in advance of the meeting.
Dated this ____ day of _______________, 20____.
[ name of public body]
By [ authorized signature]
Persons with a disability may request a reasonable accommodation, such as a sign lan-guage
interpreter, by contacting [ name, telephone number, TDD telephone number].
Requests should be made as early as possible to arrange the accommodation.
44
Form 7.7
Sample Notice and Agenda of Public Meeting and Executive Session
Sections 7.6.4, 7.6.8, 7.7.2, 7.7.4, and 7.10.1
NOTICE AND AGENDA OF MEETING
OF THE ARIZONA COMMISSION ON THE ENVIRONMENT
Pursuant to A. R. S. Â 38- 431.02, notice is hereby given to the members of the Arizona
Commission on the Environment and to the general public that the Arizona Commis-sion
on the Environment will hold a meeting open to the public on January 21, 2000,
beginning at 8: 30 a. m. in Room 201, Health Building, 1740 West Adams, Phoenix, Ari-zona.
As indicated in the following agenda, the Arizona Commission on the Envi-ronment
may vote to go into executive session, which will not be open to the public,
to discuss certain matters.
The agenda for the meeting is as follows:
I. Call to Order. ( Chairman Smith)
II. Approval of Minutes of October 19, 1999 Meeting.
III. Committee Reports. ( Oral reports of the following committees and
discussion thereon.)
1. Computer Committee. Report by the chair of the Commissionâ€™s
Advisory Committee on proposals for acquiring a new computer
system for the Commission.
IV. Personnel.
1. Consideration of applicants for Director of the Commission. The
Commission may vote to discuss this matter in executive session
pursuant to A. R. S. Â 38- 431.03( A)( 1). The names of the applicants
may be obtained by contacting the Commissionâ€™s Executive Sec-retary.
2. Selection of Director of the Commission. The Commission may
defer a decision on this matter to a later date.
V. Litigation.
1. State v. Acme Polluters. Discussion and decision concerning possi-ble
settlement. The Commission may vote to discuss this matter with
the Commissionâ€™s attorneys in executive session pursuant to A. R. S.
Â 38- 431.03( A)( 3) and ( 4). The Commission may decide the mat-ter
in the public meeting or defer decision to a later date.
2. Instituting Litigation. Discussion with and instruction to the Com-
45
missionâ€™s attorneys concerning the filing of an enforcement action
against The Brown Corporation. The Commission may discuss this
matter in executive session pursuant to A. R. S. Â 38- 431.03( A)( 2),
( 3), and ( 4). The Commission may decide the matter in the public
meeting or defer decision to a later date.
VI. Consent Agenda.
Approval of routine warrants, purchase orders, travel claims, employ-ee
leave and transfer requests, and employee resignations. ( Docu-mentation
concerning the matters on the consent agenda may be
reviewed at the Commissionâ€™s office.) Any matter on the Consent
Agenda will be removed from the Consent Agenda and discussed as a
regular agenda item upon the request of any Commission member.
1. Approval of purchase order numbers 1204, 1205, and 1206 for pur-chase
of computer equipment.
2. Approval of travel claims for employees John Q. Smith and Mary
M. McGee.
3. Approval of resignation of Daniel Warren and resolution to thank
Daniel Warren for ten years of service.
VII. Call to the Public.
This is the time for the public to comment. Members of the Board
may not discuss items that are not on the agenda. Therefore, action
taken as a result of public comment will be limited to directing staff to
study the matter or scheduling the matter for further consideration and
decision at a later date.
VIII. Announcements.
Announcements of future meeting dates and other information con-cerning
the Commission.
A copy of the agenda background material provided to Commission
members ( with the exception of material relating to possible executive
sessions) is available for public inspection at the Commissionâ€™s office,
Room 402, Health Building, 1740 West Adams, Phoenix, Arizona.
Dated this 7th day of January, 2000.
ARIZONA COMMISSION ON THE ENVIRONMENT
Chris Jones
Executive Secretary
Persons with a disability may request a reasonable accommodation, such as a sign lan-guage
interpreter, by contacting [ name, telephone number, TDD telephone number].
Requests should be made as early as possible to arrange the accommodation.
46
Form 7.8
Certification of Posting of Notice
Section 7.6.9
CERTIFICATION OF POSTING OF NOTICE
The undersigned hereby certifies that a copy of the attached notice was duly posted
at [ place] on [ date and time] in accordance with the statement filed by the [ name of
public body] with the [ name of public officer with whom the statement was file

Copyright to this resource is held by the creating agency and is provided here for educational purposes only. I may not be downloaded, reproduced, or distributed in any format without written permission of the creating agency. Any attempt to circumvent the access controls placed on this file is a violation of United States and international copyright laws, and is subject to criminal prosecution

This information is compiled and provided by:
The Arizona Ombudsman â€“ Citizensâ€™ Aide
3737 N. 7th Street, Suite 209
Phoenix, Arizona 85014
( 602) 277- 7292
1- 800- 872- 2879
Fax: ( 602) 277- 7312
e- mail: ombuds@ azoca. gov
website: www. azoca. gov
September 2007 THE ARIZONA OPEN MEETING LAW
Message from the Arizona Ombudsman
â€œ Let the people know the facts and the country will be safe.â€
â€“ Abraham Lincoln, 1861
The operation and activities of government and of government officials are issues of
interest to the general public. The Open Meeting Law is in place to ensure that the peo-pleâ€™s
business is conducted publicly. The law also helps public officials do their jobs
more efficiently and effectively.
Effective January 1, 2007, in an effort to increase government awareness and provide
the citizens of Arizona an effective and efficient means to get answers and resolve pub-lic
access disputes, new legislation expanded the Ombudsman- Citizensâ€™ Aide Office
to provide free services to citizens and public officials to help untangle the public ac-cess
web. The duties of the Ombudsman include: preparing materials on public access
laws, providing training, coaching and assisting citizens, investigating complaints,
requesting testimony or evidence, conducting hearings, making recommendations,
reporting misconduct, and referring violations to the Office of the Attorney General
for enforcement.
This pamphlet contains information relating to the Arizona Open Meeting Law and
is provided to serve as a quick reference for you. Part I of the pamphlet contains a copy
of the text of the Open Meeting Law Statutes. Part II of the pamphlet contains Chap-ter
6 of the Arizona Agency Handbook, which explains the Open Meeting Laws. 1 Part
III of the pamphlet provides a summary of recent statutory changes, recent case law,
and recent Attorney General Opinions. 2 Part IV provides the Ombudsmanâ€™s statutory
authority to educate and investigate matters relating to public access laws.
For more information, or to schedule training, please call the Ombudsmanâ€™s Office at
602- 277- 7292 or 800- 872- 2879. You can also send a letter to Arizona Ombudsman-
Citizensâ€™ Aide 3737 N. 7th St. Suite 209 Phoenix, AZ 85014, fax a letter to 602- 277-
7312, send an e- mail to ombuds@ azoca. gov, or come into the office. Of course, you
can always visit the Ombudsmanâ€™s website at www. azoca. gov.
Patrick Shannahan
Arizona Ombudsman â€“ Citizensâ€™Aide
1 Please note that the Arizona Agency Handbook was last revised in May 2001. For a
summary of recent activity, please see Part III.
2 Part III is not an exhaustive list of recent activity.
i
ii
Table of Contents
Message from Patrick Shannahan,
Arizona Ombudsman â€“ Citizensâ€™Aide . . . . . . . . . . . . . . . . . . . . . . . . . . i
Part I
Arizona Revised Statutes
Title 38. Public Officers and Employees
Chapter 3. Conduct of Office,
Article 3.1. Public Meetings and Proceedings . . . . . . . . . . . . . . . . . . . . 1
Part II
Arizona Agency Handbook
Chapter 7, Open Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
The Arizona Agency Handbook was written by
the Office of the Arizona Attorney General.
Part III
Summary of Recent Activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Part IV
Ombudsman- Citizensâ€™ Aide Enabling Statute . . . . . . . . . . . . . . . . . . . 57
iii
iv
Part I
Arizona Revised Statutes
Title 38. Public Officers and Employees
Chapter 3. Conduct of Office
Article 3.1. Public Meetings and Proceedings
38- 431. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
38- 431.01. Meetings shall be open to the public . . . . . . . . . . . . . . . . . . . 2
38- 431.02. Notice of meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
38- 431.03. Executive sessions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
38- 431.04. Writ of mandamus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
38- 431.05. Meeting held in violation of article;
business transacted null and void; ratification . . . . . . . . . . . . 7
38- 431.06. Investigations; written investigative demands . . . . . . . . . . . . 7
38- 431.07. Violations; enforcement; removal from office;
in camera review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
38- 431.08. Exceptions; limitation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
38- 431.09. Declaration of public policy. . . . . . . . . . . . . . . . . . . . . . . . . 10
1
ARTICLE 3.1 - PUBLIC MEETINGS AND PROCEEDINGS
38- 431. Definitions
In this article, unless the context otherwise requires:
1. â€œ Advisory committeeâ€ or â€œ subcommitteeâ€ means any entity, however designated,
that is officially established, on motion and order of a public body or by the pre-siding
officer of the public body, and whose members have been appointed for the
specific purpose of making a recommendation concerning a decision to be made
or considered or a course of conduct to be taken or considered by the public body.
2. â€œ Executive sessionâ€ means a gathering of a quorum of members of a public body
from which the public is excluded for one or more of the reasons prescribed in sec-tion
38- 431.03. In addition to the members of the public body, officers, appointees
and employees as provided in section 38- 431.03 and the auditor general as pro-vided
in section 41- 1279.04, only individuals whose presence is reasonably nec-essary
in order for the public body to carry out its executive session responsibilities
may attend the executive session.
3. â€œ Legal actionâ€ means a collective decision, commitment or promise made by a pub-lic
body pursuant to the constitution, the public bodyâ€™s charter, bylaws or speci-fied
scope of appointment and the laws of this state.
4. â€œ Meetingâ€ means the gathering, in person or through technological devices, of a
quorum of members of a public body at which they discuss, propose or take legal
action, including any deliberations by a quorum with respect to such action.
5. â€œ Political subdivisionâ€ means all political subdivisions of this state, including
without limitation all counties, cities and towns, school districts and special dis-tricts.
6. â€œ Public bodyâ€ means the legislature, all boards and commissions of this state or
political subdivisions, all multimember governing bodies of departments, agencies,
institutions and instrumentalities of the state or political subdivisions, including
without limitation all corporations and other instrumentalities whose boards of
directors are appointed or elected by the state or political subdivision. Public body
includes all quasi- judicial bodies and all standing, special or advisory committees
or subcommittees of, or appointed by, the public body.
7. â€œ Quasi- judicial bodyâ€ means a public body, other than a court of law, possessing
the power to hold hearings on disputed matters between a private person and a pub-lic
agency and to make decisions in the general manner of a court regarding such
disputed claims.
38- 431.01. Meetings shall be open to the public
A. All meetings of any public body shall be public meetings and all persons so de-siring
shall be permitted to attend and listen to the deliberations and proceedings.
All legal action of public bodies shall occur during a public meeting.
B. All public bodies shall provide for the taking of written minutes or a recording of
all their meetings, including executive sessions. For meetings other than executive
2
sessions, such minutes or recording shall include, but not be limited to:
1. The date, time and place of the meeting.
2. The members of the public body recorded as either present or absent.
3. A general description of the matters considered.
4. An accurate description of all legal actions proposed, discussed or taken, and
the names of members who propose each motion. The minutes shall also
include the names of the persons, as given, making statements or presenting
material to the public body and a reference to the legal action about which they
made statements or presented material.
C. Minutes of executive sessions shall include items set forth in subsection B,
paragraphs 1, 2 and 3 of this section, an accurate description of all instructions
given pursuant to section 38- 431.03, subsection A, paragraphs 4, 5 and 7 and such
other matters as may be deemed appropriate by the public body.
D. The minutes or a recording of a meeting shall be available for public inspection
three working days after the meeting except as otherwise specifically provided by
this article.
E. A public body of a city or town with a population of more than two thousand five
hundred persons shall:
1. Within three working days after a meeting, except for subcommittees and
advisory committees, post on its internet website, if applicable, either:
( a) A statement describing the legal actions taken by the public body of the city
or town during the meeting.
( b) Any recording of the meeting.
2. Within two working days following approval of the minutes, post approved
minutes of city or town council meetings on its internet website, if applicable,
except as otherwise specifically provided by this article.
3. Within ten working days after a subcommittee or advisory committee
meeting, post on its internet website, if applicable, either:
( a) A statement describing legal action, if any.
( b) A recording of the meeting.
F. All or any part of a public meeting of a public body may be recorded by any per-son
in attendance by means of a tape recorder or camera or any other means of
sonic reproduction, provided that there is no active interference with the conduct
of the meeting.
G. The secretary of state for state public bodies, the city or town clerk for municipal
public bodies and the county clerk for all other local public bodies shall distrib-ute
open meeting law materials prepared and approved by the attorney general to
a person elected or appointed to a public body prior to the day that person takes
office.
H. A public body may make an open call to the public during a public meeting, sub-ject
to reasonable time, place and manner restrictions, to allow individuals to
address the public body on any issue within the jurisdiction of the public body. At
the conclusion of an open call to the public, individual members of the public body
3
may respond to criticism made by those who have addressed the public body,
may ask staff to review a matter or may ask that a matter be put on a future agen-da.
However, members of the public body shall not discuss or take legal action on
matters raised during an open call to the public unless the matters are properly no-ticed
for discussion and legal action.
I. A member of a public body shall not knowingly direct any staff member to com-municate
in violation of this article.
38- 431.02. Notice of meetings
A. Public notice of all meetings of public bodies shall be given as follows:
1. The public bodies of the state shall file a statement with the secretary of state
stating where all public notices of their meetings will be posted and shall give
such additional public notice as is reasonable and practicable as to all meet-ings.
2. The public bodies of the counties, school districts and other special districts
shall file a statement with the clerk of the board of supervisors stating where
all public notices of their meetings will be posted and shall give such additional
public notice as is reasonable and practicable as to all meetings.
3. The public bodies of the cities and towns shall file a statement with the city
clerk or mayorâ€™s office stating where all public notices of their meetings will
be posted and shall give such additional public notice as is reasonable and prac-ticable
as to all meetings.
4. The public bodies of the cities and towns that have an internet web site shall
post all public notices of their meetings on their internet web site and shall give
additional public notice as is reasonable and practicable as to all meetings. A
technological problem or failure that either prevents the posting of public no-tices
on a city or town web site or that temporarily or permanently prevents the
usage of all or part of the web site does not preclude the holding of the meet-ing
for which the notice was posted if all other public notice requirements re-quired
by this section are complied with.
B. If an executive session will be held, the notice shall be given to the members of
the public body, and to the general public, stating the specific provision of law au-thorizing
the executive session.
C. Except as provided in subsections D and E, meetings shall not be held without at
least twenty- four hoursâ€™ notice to the members of the public body and to the gen-eral
public.
D. In case of an actual emergency, a meeting, including an executive session, may be
held on such notice as is appropriate to the circumstances. If this subsection is uti-lized
for conduct of an emergency session or the consideration of an emergency
measure at a previously scheduled meeting the public body must post a public no-tice
within twenty- four hours declaring that an emergency session has been held
and setting forth the information required in subsections H and I.
E. A meeting may be recessed and resumed with less than twenty- four hoursâ€™ notice
4
if public notice of the initial session of the meeting is given as required in sub-section
A, and if, prior to recessing, notice is publicly given as to the time and place
of the resumption of the meeting or the method by which notice shall be publicly
given.
F. A public body that intends to meet for a specified calendar period, on a regular day,
date or event during such calendar period, and at a regular place and time, may post
public notice of such meetings at the beginning of such period. Such notice shall
specify the period for which notice is applicable.
G. Notice required under this section shall include an agenda of the matters to be dis-cussed
or decided at the meeting or information on how the public may obtain a
copy of such an agenda. The agenda must be available to the public at least twen-ty-
four hours prior to the meeting, except in the case of an actual emergency
under subsection D.
H. Agendas required under this section shall list the specific matters to be discussed,
considered or decided at the meeting. The public body may discuss, consider or
make decisions only on matters listed on the agenda and other matters related
thereto.
I. Notwithstanding the other provisions of this section, notice of executive sessions
shall be required to include only a general description of the matters to be con-sidered.
Such agenda shall provide more than just a recital of the statutory provi-sions
authorizing the executive session, but need not contain information that
would defeat the purpose of the executive session, compromise the legitimate
privacy interests of a public officer, appointee or employee, or compromise the
attorney- client privilege.
J. Notwithstanding subsections H and I, in the case of an actual emergency a mat-ter
may be discussed and considered and, at public meetings, decided, where the
matter was not listed on the agenda provided that a statement setting forth the rea-sons
necessitating such discussion, consideration or decision is placed in the min-utes
of the meeting and is publicly announced at the public meeting. In the case
of an executive session, the reason for consideration of the emergency measure
shall be announced publicly immediately prior to the executive session.
K. Notwithstanding subsection H, the chief administrator, presiding officer or a mem-ber
of a public body may present a brief summary of current events without list-ing
in the agenda the specific matters to be summarized, provided that:
1. The summary is listed on the agenda.
2. The public body does not propose, discuss, deliberate or take legal action at
that meeting on any matter in the summary unless the specific matter is prop-erly
noticed for legal action.
38- 431.03. Executive sessions
A. Upon a public majority vote of the members constituting a quorum, a public body
may hold an executive session but only for the following purposes:
1. Discussion or consideration of employment, assignment, appointment, pro-
5
motion, demotion, dismissal, salaries, disciplining or resignation of a public
officer, appointee or employee of any public body, except that, with the ex-ception
of salary discussions, an officer, appointee or employee may demand
that the discussion or consideration occur at a public meeting. The public
body shall provide the officer, appointee or employee with written notice of
the executive session as is appropriate but not less than twenty- four hours for
the officer, appointee or employee to determine whether the discussion or
consideration should occur at a public meeting.
2. Discussion or consideration of records exempt by law from public inspection,
including the receipt and discussion of information or testimony that is specif-ically
required to be maintained as confidential by state or federal law.
3. Discussion or consultation for legal advice with the attorney or attorneys of the
public body.
4. Discussion or consultation with the attorneys of the public body in order to con-sider
its position and instruct its attorneys regarding the public bodyâ€™s position
regarding contracts that are the subject of negotiations, in pending or con-templated
litigation or in settlement discussions conducted in order to avoid
or resolve litigation.
5. Discussions or consultations with designated representatives of the public
body in order to consider its position and instruct its representatives regarding
negotiations with employee organizations regarding the salaries, salary sched-ules
or compensation paid in the form of fringe benefits of employees of the
public body.
6. Discussion, consultation or consideration for international and interstate ne-gotiations
or for negotiations by a city or town, or its designated representa-tives,
with members of a tribal council, or its designated representatives, of an
Indian reservation located within or adjacent to the city or town.
7. Discussions or consultations with designated representatives of the public
body in order to consider its position and instruct its representatives regarding
negotiations for the purchase, sale or lease of real property.
B. Minutes of and discussions made at executive sessions shall be kept confidential
except from:
1. Members of the public body which met in executive session.
2. Officers, appointees or employees who were the subject of discussion or con-sideration
pursuant to subsection A, paragraph 1 of this section.
3. The auditor general on a request made in connection with an audit authorized
as provided by law.
4. A county attorney or the attorney general when investigating alleged violations
of this article.
C. The public body shall instruct persons who are present at the executive session re-garding
the confidentiality requirements of this article.
D. Legal action involving a final vote or decision shall not be taken at an executive
session, except that the public body may instruct its attorneys or representatives
6
as provided in subsection A, paragraphs 4, 5 and 7 of this section. A public vote
shall be taken before any legal action binds the public body.
E. Except as provided in section 38- 431.02, subsections I and J, a public body shall
not discuss any matter in an executive session which is not described in the notice
of the executive session.
F. Disclosure of executive session information pursuant to this section or section 38-
431.06 does not constitute a waiver of any privilege, including the attorney- client
privilege. Any person receiving executive session information pursuant to this
section or section 38- 431.06 shall not disclose that information except to the at-torney
general or county attorney, by agreement with the public body or to a court
in camera for purposes of enforcing this article. Any court that reviews executive
session information shall take appropriate action to protect privileged information.
38- 431.04. Writ of mandamus
Where the provisions of this article are not complied with, a court of competent juris-diction
may issue a writ of mandamus requiring that a meeting be open to the public.
38- 431.05. Meeting held in violation of article; business transacted null and
void; ratification
A. All legal action transacted by any public body during a meeting held in violation
of any provision of this article is null and void except as provided in subsection B.
B. A public body may ratify legal action taken in violation of this article in accordance
with the following requirements:
1. Ratification shall take place at a public meeting within thirty days after dis-covery
of the violation or after such discovery should have been made by the
exercise of reasonable diligence.
2. The notice for the meeting shall include a description of the action to be rati-fied,
a clear statement that the public body proposes to ratify a prior action and
information on how the public may obtain a detailed written description of the
action to be ratified.
3. The public body shall make available to the public a detailed written descrip-tion
of the action to be ratified and all deliberations, consultations and deci-sions
by members of the public body that preceded and related to such action.
The written description shall also be included as part of the minutes of the meet-ing
at which ratification is taken.
4. The public body shall make available to the public the notice and detailed writ-ten
description required by this section at least seventy- two hours in advance
of the public meeting at which the ratification is taken.
38- 431.06. Investigations; written investigative demands
A. On receipt of a written complaint signed by a complainant alleging a violation of
this article or on their own initiative, the attorney general or the county attorney
for the county in which the alleged violation occurred may begin an investigation.
7
B. In addition to other powers conferred by this article, in order to carry out the du-ties
prescribed in this article, the attorney general or the county attorney for the
county in which the alleged violation occurred, or their designees, may:
1. Issue written investigative demands to any person.
2. Administer an oath or affirmation to any person for testimony.
3. Examine under oath any person in connection with the investigation of the al-leged
violation of this article.
4. Examine by means of inspecting, studying or copying any account, book,
computer, document, minutes, paper, recording or record.
5. Require any person to file on prescribed forms a statement or report in writ-ing
and under oath of all the facts and circumstances requested by the attor-ney
general or county attorney.
C. The written investigative demand shall:
1. Be served on the person in the manner required for service of process in this
state or by certified mail, return receipt requested.
2. Describe the class or classes of documents or objects with sufficient definite-ness
to permit them to be fairly identified.
3. Prescribe a reasonable time at which the person shall appear to testify and with-in
which the document or object shall be produced and advise the person that
objections to or reasons for not complying with the demand may be filed with
the attorney general or county attorney on or before that time.
4. Specify a place for the taking of testimony or for production of a document or
object and designate a person who shall be the custodian of the document or
object.
D. If a person objects to or otherwise fails to comply with the written investigation
demand served on the person pursuant to subsection C, the attorney general or
county attorney may file an action in the superior court for an order to enforce the
demand. Venue for the action to enforce the demand shall be in Maricopa county
or in the county in which the alleged violation occurred. Notice of hearing the ac-tion
to enforce the demand and a copy of the action shall be served on the person
in the same manner as that prescribed in the Arizona rules of civil procedure. If a
court finds that the demand is proper, including that the compliance will not vio-late
a privilege and that there is not a conflict of interest on the part of the attor-ney
general or county attorney, that there is reasonable cause to believe there may
have been a violation of this article and that the information sought or document
or object demanded is relevant to the violation, the court shall order the person to
comply with the demand, subject to modifications the court may prescribe. If the
person fails to comply with the courtâ€™s order, the court may issue any of the fol-lowing
orders until the person complies with the order:
1. Adjudging the person in contempt of court.
2. Granting injunctive relief against the person to whom the demand is issued to
restrain the conduct that is the subject of the investigation.
3. Granting other relief the court deems proper.
8
38- 431.07. Violations; enforcement; removal from office; in camera review
A. Any person affected by an alleged violation of this article, the attorney general or
the county attorney for the county in which an alleged violation of this article oc-curred
may commence a suit in the superior court in the county in which the pub-lic
body ordinarily meets, for the purpose of requiring compliance with, or the
prevention of violations of, this article, by members of the public body, or to de-termine
the applicability of this article to matters or legal actions of the public body.
For each violation the court may impose a civil penalty not to exceed five hundred
dollars against a person who violates this article or who knowingly aids, agrees to
aid or attempts to aid another person in violating this article and order such equi-table
relief as it deems appropriate in the circumstances. The civil penalties award-ed
pursuant to this section shall be deposited into the general fund of the public
body concerned. The court may also order payment to a successful plaintiff in a
suit brought under this section of the plaintiffâ€™s reasonable attorney fees, by the de-fendant
state, the political subdivision of the state or the incorporated city or town
of which the public body is a part or to which it reports. If the court determines
that a public officer with intent to deprive the public of information violated any
provision of this article the court may remove the public officer from office and
shall assess the public officer or a person who knowingly aided, agreed to aid or
attempted to aid the public officer in violating this article, or both, with all of the
costs and attorney fees awarded to the plaintiff pursuant to this section.
B. A public body shall not expend public monies to employ or retain legal counsel
to provide legal services or representation to the public body or any of its officers
in any legal action commenced pursuant to any provisions of this article, unless
the public body has authority to make such expenditure pursuant to other provi-sions
of law and takes a legal action at a properly noticed open meeting approv-ing
such expenditure prior to incurring any such obligation or indebtedness.
C. In any action brought pursuant to this section challenging the validity of an exec-utive
session, the court may review in camera the minutes of the executive session,
and if the court in its discretion determines that the minutes are relevant and that
justice so demands, the court may disclose to the parties or admit in evidence part
or all of the minutes.
38- 431.08. Exceptions; limitation
A. This article does not apply to:
1. Any judicial proceeding of any court or any political caucus of the legislature.
2. Any conference committee of the legislature, except that all such meetings shall
be open to the public.
3. The commissions on appellate and trial court appointments and the commis-sion
on judicial qualifications.
4. Good cause exception determinations and hearings conducted by the board of
fingerprinting pursuant to section 41- 619.55.
B. A hearing held within a prison facility by the board of executive clemency is sub-
9
ject to this article, except that the director of the state department of corrections
may:
1. Prohibit, on written findings that are made public within five days of so find-ing,
any person from attending a hearing whose attendance would constitute
a serious threat to the life or physical safety of any person or to the safe, se-cure
and orderly operation of the prison.
2. Require a person who attends a hearing to sign an attendance log. If the per-son
is over sixteen years of age, the person shall produce photographic iden-tification
which verifies the personâ€™s signature.
3. Prevent and prohibit any articles from being taken into a hearing except record-ing
devices, and if the person who attends a hearing is a member of the media,
cameras.
4. Require that a person who attends a hearing submit to a reasonable search on
entering the facility.
C. The exclusive remedies available to any person who is denied attendance at or re-moved
from a hearing by the director of the state department of corrections in vi-olation
of this section shall be those remedies available in section 38- 431.07, as
against the director only.
D. Either house of the legislature may adopt a rule or procedure pursuant to article
IV, part 2, section 8, Constitution of Arizona, to provide an exemption to the no-tice
and agenda requirements of this article or to allow standing or conference com-mittees
to meet through technological devices rather than only in person.
38- 431.09. Declaration of public policy
It is the public policy of this state that meetings of public bodies be conducted open-ly
and that notices and agendas be provided for such meetings which contain such in-formation
as is reasonably necessary to inform the public of the matters to be discussed
or decided. Toward this end, any person or entity charged with the interpretations of
this article shall construe any provision of this article in favor of open and public
meetings.
10
Part II
Arizona Agency Handbook
Chapter 7
Open Meetings
Section 7.1 Scope of this Chapter . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 7.2 Arizonaâ€™s Open Meeting Law
7.2.1 History of Arizonaâ€™s Open Meeting Law. . . . . . . . . 14
7.2.2 Legislative Intent . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 7.3 Government Bodies Covered by the Open Meeting Law
7.3.1 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
7.3.2 Boards and Commissions. . . . . . . . . . . . . . . . . . . . . 15
7.3.3 Quasi- Governmental Corporations . . . . . . . . . . . . . 15
7.3.4 Quasi- Judicial Bodies. . . . . . . . . . . . . . . . . . . . . . . . 16
7.3.5 Advisory Committees. . . . . . . . . . . . . . . . . . . . . . . . 16
7.3.6 Special and Standing Committees
and Subcommittees . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 7.4 Government Bodies and Proceedings Not Covered
by the Open Meeting Law. . . . . . . . . . . . . . . . . . . . . . . 17
7.4.1 Judicial Appointment Commissions. . . . . . . . . . . . . 17
7.4.2 Proceedings Before Courts. . . . . . . . . . . . . . . . . . . . 17
7.4.3 The Legislature. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
7.4.4 Student Disciplinary Proceedings . . . . . . . . . . . . . . 17
7.4.5 Insurance Guaranty Fund Boards. . . . . . . . . . . . . . . 17
7.4.6 Hearings Held in Prison Facilities . . . . . . . . . . . . . . 17
7.4.7 Board of Fingerprinting . . . . . . . . . . . . . . . . . . . . . . 17
7.4.8 Homeowners Associations . . . . . . . . . . . . . . . . . . . . 18
Section 7.5 The Actions and Activities Covered by the Open Meeting Law
7.5.1 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
7.5.2 Circumvention of the Open Meeting Law . . . . . . . . 18
7.5.3 Applicability to Staff Members and Others . . . . . . . 19
Section 7.6 Notice of Meetings
7.6.1 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
7.6.2 Notice to Members of the Public Body . . . . . . . . . . 19
7.6.3 Notice to the Public . . . . . . . . . . . . . . . . . . . . . . . . . 19
7.6.3.1 Disclosure Statement . . . . . . . . . . . . . . . . . . . . . . . . 19
7.6.3.2 Public Notice of Meetings . . . . . . . . . . . . . . . . . . . . 20
11
7.6.4 Contents of the Notice . . . . . . . . . . . . . . . . . . . . . . . 20
7.6.5 Time for Giving Notice . . . . . . . . . . . . . . . . . . . . . . 20
7.6.6 Notice of Regular Meetings . . . . . . . . . . . . . . . . . . . 21
7.6.7 Notice of Executive Sessions . . . . . . . . . . . . . . . . . . 21
7.6.8 Combined Notice of Public Meeting
and Executive Session . . . . . . . . . . . . . . . . . . . . . . . 22
7.6.9 Maintaining Records of Notice Given . . . . . . . . . . . 22
Section 7.7 Agendas
7.7.1 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
7.7.2 Contents of the Agenda â€” Public Meeting . . . . . . . 23
7.7.3 Contents of the Agenda â€” Executive Session . . . . . 23
7.7.4 Distribution of the Agenda . . . . . . . . . . . . . . . . . . . . 23
7.7.5 Consent Agendas . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
7.7.6 Discussing and Deciding Matters
Not Listed on the Agenda. . . . . . . . . . . . . . . . . . . . . 24
7.7.7 Calls to the Public . . . . . . . . . . . . . . . . . . . . . . . . . . 24
7.7.8 Current Event Summaries . . . . . . . . . . . . . . . . . . . . 25
7.7.9 Emergencies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
7.7.10 Changes to the Agenda. . . . . . . . . . . . . . . . . . . . . . . 26
Section 7.8 Minutes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
7.8.1 Form of and Access to the Minutes . . . . . . . . . . . . . 26
7.8.2 Contents of the Minutes of Public Meetings . . . . . . 26
7.8.3 Contents of the Minutes of Executive Sessions . . . . 27
7.8.4 Confidentiality of Executive Session Minutes . . . . . 28
Section 7.9 Executive Sessions . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
7.9.1 Deciding to Go Into Executive Session . . . . . . . . . . 29
7.9.2 Executive Session Requirements . . . . . . . . . . . . . . . 29
7.9.3 Authorized Executive Sessions . . . . . . . . . . . . . . . . 29
7.9.4 Personnel Matters. . . . . . . . . . . . . . . . . . . . . . . . . . . 29
7.9.5 Confidential Records . . . . . . . . . . . . . . . . . . . . . . . . 31
7.9.6 Legal Advice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
7.9.7 Litigation, Contract Negotiations
and Settlement Discussions . . . . . . . . . . . . . . . . . . . 32
7.9.8 Employee Salary Discussions . . . . . . . . . . . . . . . . . 32
7.9.9 International, Interstate, and Tribal Negotiations. . . 33
7.9.10 Purchase, Sale or Lease of Real Property . . . . . . . . 33
7.9.11 Taking Legal Action . . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 7.10 Public Access to Meetings
7.10.1 Public Participation and Access . . . . . . . . . . . . . . . . 33
7.10.2 Telephone Conferences . . . . . . . . . . . . . . . . . . . . . . 34
7.10.3 Recording the Proceedings. . . . . . . . . . . . . . . . . . . . 35
Section 7.11 Ratification
7.11.1 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
12
7.11.2 Procedure for Ratification . . . . . . . . . . . . . . . . . . . . 35
Section 7.12 Sanctions for Violations of the Open Meeting Law
7.12.1 Nullification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
7.12.2 Investigation and Enforcement. . . . . . . . . . . . . . . . . 36
7.12.3 Civil Penalties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
7.12.4 Attorneyâ€™s Fees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
7.12.5 Expenditure for Legal Services by Public Body
Relating to the Open Meeting Law . . . . . . . . . . . . . 38
7.12.6 Removal From Office. . . . . . . . . . . . . . . . . . . . . . . . 38
Form 7.1 Disclosure Statement. . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Form 7.2 Notice of Public Meeting of a Public Body . . . . . . . . . 40
Form 7.3 Notice of Public Meeting of a Subcommittee
or Advisory Committee of a Public Body. . . . . . . . . . . 41
Form 7.4 Notice of Regular Meetings of a Public Body . . . . . . . 42
Form 7.5 Notice of Meeting and Possible
Executive Session of a Public Body . . . . . . . . . . . . . . . 43
Form 7.6 Notice of Combined Public Meeting
and Executive Session. . . . . . . . . . . . . . . . . . . . . . . . . . 44
Form 7.7 Sample Notice and Agenda of Public Meeting
and Executive Session. . . . . . . . . . . . . . . . . . . . . . . . . . 45
Form 7.8 Certification of Posting of Notice . . . . . . . . . . . . . . . . . 47
Form 7.9 Special Notice of Emergency Meeting . . . . . . . . . . . . . 48
Form 7.10 Minutes of Public Meeting . . . . . . . . . . . . . . . . . . . . . . 49
Form 7.11 Minutes of Executive Session . . . . . . . . . . . . . . . . . . . . 50
Form 7.12 Notice of Action to be Ratified . . . . . . . . . . . . . . . . . . . 51
Form 7.13 Employee Notice of Executive Session . . . . . . . . . . . . 52
13
7.1 Scope of this Chapter.
This Chapter discusses Arizonaâ€™s Open Meeting Law, A. R. S. Â Â 38- 431 to - 431.09,
with particular emphasis on the application of the Open Meeting Law to the day- to-day
operations of state officers, bodies, and agencies. This Chapter does not resolve
all issues that may arise under the Open Meeting Law, but rather is intended to serve
as a reference for public officials who must comply with the law. Anyone faced with
a situation not specifically addressed in this Chapter should consult their legal coun-sel
before proceeding.
7.2 Arizonaâ€™s Open Meeting Law.
7.2.1 History of Arizonaâ€™s Open Meeting Law. All fifty states have enacted some
type of legislation providing the public with a statutory right to openness in govern-ment.
In addition, the United States Congress in 1976 enacted the Federal Open Meet-ing
Act, 5 U. S. C. Â 552b. Arizonaâ€™s Open Meeting Law was first adopted in 1962 and
amended in 1974, 1975, 1977, 1978, 1982, 1983, 1985, 1990, and extensively in
2000. For a detailed discussion of the early history of the Open Meeting Law through
1975, see Ariz. Attâ€™y Gen. Op. 75- 7.
7.2.2 Legislative Intent. The Legislature has repeatedly expressed its intent that the
Open Meeting Law be construed to maximize public access to the governmental
process. In first enacting the Open Meeting Law in 1962, the Legislature declared that:
â€œ It is the public policy of this state that proceedings in meetings of governing bodies
of the state and political subdivisions thereof exist to aid in the conduct of the peopleâ€™s
business. It is the intent of this act that their official deliberations and proceedings be
conducted openly.â€
In 1978, after a series of court opinions narrowly construing the Open Meeting Law,
the Legislature reiterated its policy by adding A. R. S. Â 38- 431.09. That statute now
provides:
It is the public policy of this state that meetings of public bodies be con-ducted
openly and that notices and agendas be provided for such meetings
which contain such information as is reasonably necessary to inform the
public of the matters to be discussed or decided. Toward this end, any per-son
or entity charged with the interpretation of this article shall construe
any provision of this article in favor of open and public meetings.
A. R. S. Â 38- 431.09. In keeping with this expressed intent, any uncertainty under the
Open Meeting Law should be resolved in favor of openness in government. Any ques-tion
whether the Open Meeting Law applies to a certain public body likewise should
be resolved in favor of applying the law.
14
7.3 Government Bodies Covered by the Open Meeting Law.
7.3.1 Generally. The provisions of the Open Meeting Law apply to all public bodies.
A public body is defined in A. R. S. Â 38- 431( 6) as follows:
â€œ Public bodyâ€ means the legislature, all boards and commissions of this
state or political subdivisions, all multimember governing bodies of de-partments,
agencies, institutions and instrumentalities of the state or po-litical
subdivisions, including without limitation all corporations and other
instrumentalities whose boards of directors are appointed or elected by the
state or political subdivision. Public body includes all quasi- judicial bod-ies
and all standing, special or advisory committees or subcommittees of,
or appointed by, such public body.
This definition specifically includes public bodies of all political subdivisions. A po-litical
subdivision is defined in A. R. S. Â 38- 431( 5) to include â€œ all political subdivisions
of this state, including without limitation all counties, cities and towns, school districts
and special districts.â€
The definition of public body encompasses five basic categories of public bodies:
1) boards, commissions, and other multimember governing bodies; 2) quasi- govern-mental
corporations; 3) quasi- judicial bodies; 4) advisory committees; and 5) stand-ing
and special committees and subcommittees of any of the above. See A. R. S. Â
38- 431( 6).
7.3.2 Boards and Commissions. All boards and commissions and other multimem-ber
governing bodies of the state or its political subdivisions or of the departments,
agencies, institutions, and instrumentalities of the state or its political subdivisions are
covered by the Open Meeting Law. See A. R. S. Â 38- 431( 6). The multimember gov-erning
body must be created by law or by an official act pursuant to some legal au-thority.
See id. Examples of public bodies created by law include the Arizona
Legislature, county boards of supervisors, city and town councils, school boards, the
governing boards of special districts, and all state, county, and municipal licensing and
regulatory boards.
The Open Meeting Law applies only to multimember bodies and does not apply
to the deliberations and meetings conducted by the single head of an agency. See
Ariz. Attâ€™y Gen. Ops. I92- 007, 75- 7. Accordingly, the director of a department is not
subject to the Open Meeting Law when meeting with staff members to discuss the op-erations
of the department.
7.3.3 Quasi- Governmental Corporations. The boards of directors of corporations and
instrumentalities of the state or its political subdivisions are subject to the Open Meet-ing
Law when the members of the board are appointed or elected by the state or its
political subdivisions. See A. R. S. Â 38- 431( 5), ( 6). For example, the Board of Direc-tors
of the Phoenix Civic Improvement Corporation falls into this category. The Open
Meeting Law does not apply, however, to a private non- profit hospital association
15
that has a board of directors elected by the electorate of the hospital district. Prescott
Newspapers, Inc. v. Yavapai Community Hosp. Assâ€™n, 163 Ariz. 33, 785 P. 2d 1221
( App. 1989).
7.3.4 Quasi- Judicial Bodies. The Open Meeting Law defines a quasi- judicial body
as â€œ a public body, other than a court of law, possessing the power to hold hearings on
disputed matters between a private person and a public agency and to make decisions
in the general manner of a court regarding such disputed claims.â€ A. R. S. Â 38- 431( 7).
This definition was added by the Legislature in 1978 to reverse the Arizona Supreme
Courtâ€™s decision in Arizona Press Club, Inc. v. Bd. of Tax Appeals, 113 Ariz. 545, 558
P. 2d 697 ( 1976), which held that the Open Meeting Law did not apply to bodies con-ducting
quasi- judicial functions, such as license revocation proceedings. See Ariz.
Attâ€™y Gen. Op. 78- 245. The Arizona Board of Tax Appeals and similar quasi- judicial
bodies are now expressly covered by the Open Meeting Law. A. R. S. Â 38- 431( 6), ( 7).
Contested case proceedings or quasi- judicial or adjudicatory proceedings con-ducted
by public bodies are subject to all of the requirements of the Open Meeting Law.
Rosenberg v. Bd. of Regents, 118 Ariz. 489, 578 P. 2d 168 ( 1978); City of Flagstaff v.
Bleeker, 123 Ariz. 436, 600 P. 2d 49 ( App. 1979); Ariz. Attâ€™y Gen. Op. 75- 7.
7.3.5 Advisory Committees. Advisory committees are subject to all of the require-ments
of the Open Meeting Law, except the minute- taking requirements. A. R. S. Â 38-
431.01( A), ( B). An advisory committee is defined as any group
officially established, upon motion and order of a public body or by the
presiding officer of the public body, and whose members have been ap-pointed
for the specific purpose of making a recommendation concerning
a decision to be made or considered or a course of conduct to be taken or
considered by the public body.
A. R. S. Â 38- 431( 1). This definition does not include advisory groups established by
the single head of an agency unless they are created pursuant to a statute, city char-ter,
or other provision of law or by an official act pursuant to some legal authority. See
Ariz. Attâ€™y Gen. Op. I92- 007; Section 7.3.2. A staff committee consisting exclusive-ly
of employees of the public body is not an advisory committee.
7.3.6 Special and Standing Committees and Subcommittees. Special and standing
committees and subcommittees of, or appointed by, any of the public bodies described
above are also covered by the Open Meeting Law, although subcommittees are not re-quired
to keep minutes. A. R. S. Â 38- 431.01( A), ( B). A special or standing committee
may consist of members of the public body who have been appointed by or author-ized
to act for the public body. A. R. S. Â 38- 431( 6). The fact that a committee consists,
in whole or in part, of persons who are not members of the public body does not af-fect
its status as a public body subject to the Open Meeting Law. See Ariz. Attâ€™y Gen.
Op. I80- 202.
16
7.4 Government Bodies and Proceedings Not Covered by the Open Meeting Law.
The Legislature has determined that certain public bodies need not comply with all or
portions of the Open Meeting Law in particular circumstances. This section identifies
some of those limited exceptions.
7.4.1 Judicial Appointment Commissions. The Commissions on Appellate and Trial
Court Appointments and the Commission on Judicial Qualifications are expressly ex-empt
from the Open Meeting Law. A. R. S. Â 38- 431.08( A)( 3).
7.4.2 Proceedings Before Courts. The Open Meeting Law does not apply to judicial
proceedings of courts within the judicial branch of government. A. R. S. Â Â 38- 431( 7),
- 431.08( A)( 1).
7.4.3 The Legislature. Meetings of legislative conference committees must be open
to the public; however, the committees are exempted from all other requirements of
the Open Meeting Law. A. R. S. Â 38- 431.08( A)( 2). The Open Meeting Law does not
apply to the activities of a political caucus of the Legislature. Id. Â ( A)( 1); cf. Ariz. Attâ€™y
Gen. Op. I83- 128. The Open Meeting Law permits either house of the Legislature to
adopt a rule or procedure exempting itself from the notice and agenda requirements
of the Open Meeting Law or to allow standing or conference committees to meet
through technological devices rather than in person. A. R. S. Â 38- 431.08( D).
7.4.4 Student Disciplinary Proceedings. Actions concerning the â€œ discipline, sus-pension
or expulsion of a pupilâ€ are not subject to the Open Meeting Law. A. R. S. Â
15- 843. This same statute, however, prescribes the procedures that the school board
must follow in handling these matters.
7.4.5 Insurance Guaranty Fund Boards. Special meetings of the property and ca-sualty
insurance guaranty fund in which the financial condition of any member insurer
is discussed are exempt from the Open Meeting Law. A. R. S. Â 20- 671.
7.4.6 Hearings Held in Prison Facilities. Hearings held by the Board of Pardons and
Paroles in a prison facility are subject to the Open Meeting Law, but the Director of
the State Department of Corrections may prohibit certain individuals from attending
such hearings because they pose a serious threat to the safety and security of others
or the prison. Other conditions on attendance, such as signing an attendance log and
submitting to a reasonable search, may be imposed as well. A. R. S. Â 38- 431.08( B).
7.4.7 Board of Fingerprinting. Good cause exception hearings conducted by the
Board of Fingerprinting pursuant to A. R. S. Â 41- 619.55 are exempt from the Open
Meeting Law. A. R. S. Â 38- 431.08( A)( 4).
17
7.4.8 Homeowners Associations. Because they are not governmental â€œ public bodies,â€
homeowners associations are not covered by the Open Meeting Law. Ariz. Attâ€™y Gen.
Op. 97- 012. They do, however, have to comply with separate notification requirements.
Id. Those requirements must be enforced privately because the Attorney General and
County Attorneys have no jurisdiction over such matters. For more information on the
requirements of homeowners associations, see A. R. S. Â 33- 1801 et seq.
7.5 The Actions and Activities Covered by the Open Meeting Law.
7.5.1 Generally. All meetings of a public body shall be public, and all persons desir-ing
to attend shall be permitted to attend and listen to the deliberations and proceed-ings.
A. R. S. Â 38- 431.01( A). All legal action of public bodies shall occur during a
public meeting. Id. A meeting is defined as â€œ the gathering, in person or through tech-nological
devices, of a quorum of members of a public body at which they discuss,
propose or take legal action, including any deliberations by a quorum with respect to
such action.â€ A. R. S. Â 38- 431( 4). The definition of meeting was modified by the Ari-zona
Legislature in 2000 to prohibit a quorum of a public body from secretly com-municating
through technological devices, including facsimile machines, telephones,
and electronic mail.
All discussions, deliberations, considerations, or consultations among a majority
of the members of a public body regarding matters that may foreseeably require final
action or a final decision by the governing body, constitute â€œ legal actionâ€ and, there-fore,
must be conducted in a public meeting or executive session in accordance with
the Open Meeting Law. Ariz. Attâ€™y Gen. Ops. 75- 8, I79- 4. See also A. R. S. Â Â 38-
431.01( A), - 431( 3). Whether the matter to be discussed may foreseeably require final
action is the key to this inquiry. It is nearly impossible to establish a precise guideline
as to when this foreseeability test has been met, and each case should be viewed on
its own merits and all doubts resolved in favor of compliance with the Open Meeting
Law. The safest course of action is to comply with the Open Meeting Law whenever
a majority of the body discusses the business of the public body. It does not matter what
label is placed on a gathering. It may be called a â€œ workâ€ or â€œ studyâ€ session, or the dis-cussion
may occur at a social function. Ariz. Attâ€™y Gen. Op. I79- 4. Discussion of the
public bodyâ€™s business may take place only in a public meeting or an executive ses-sion
in accordance with the requirements of the Open Meeting Law.
7.5.2 Circumvention of the Open Meeting Law. Discussions and deliberations be-tween
less than a majority of the members of a governing body, or other devices, when
used to circumvent the purposes of the Open Meeting Law violate that law. See Ariz.
Attâ€™y Gen. Op. 75- 8; Town of Palm Beach v. Gradison, 296 So. 2d 473 ( Fla. 1974).
Public officials may not circumvent public discussion by splintering the quorum and
having separate or serial discussions with a majority of the public body members.
Splintering the quorum can be done by meeting in person, by telephone, electronically,
18
or through other means to discuss a topic that is or may be presented to the public body
for a decision. Public officials should refrain from any activities that may undermine
public confidence in the public decision making process established in the Open
Meeting Law, including actions that may appear to remove discussions and decisions
from public view.
7.5.3 Applicability to Staff Members and Others. The Open Meeting Law further
provides that members of public bodies shall not knowingly direct any staff member
to communicate in violation of the Open Meeting Law. A. R. S. Â 38- 431.01( H). Peo-ple
knowingly aiding, agreeing to aid or attempting to aid another person in violating
the Open Meeting Law can be held liable for civil penalties, attorneysâ€™ fees, and costs
pursuant to A. R. S. Â 38- 431.07( A). See Sections 7.12.3 and 7.12.4. Hence, staff mem-bers,
representatives, citizens and others should take steps to ensure they are not act-ing
in a manner to commit a violation or subject themselves to liability.
7.6 Notice of Meetings.
7.6.1 Generally. The Open Meeting Law requires at least 24 hours advance notice of
all meetings to the public body and to the general public. Notice makes it possible for
the public to attend public meetings by informing them of when and where to go, and
of the matters under consideration. So informed, the public can enjoy meaningful
participation. Arizona courts have emphasized the importance of sufficient notice of
meetings. The Arizona Court of Appeals explained â€œ The notice provisions in the open
meeting law are obviously designed to give meaningful effect to provisions such as
A. R. S. Â Â 38- 431.01( A) and 38- 431.09. The goal of exposing the public decision- mak-ing
process to the public itself could be significantly, if not totally thwarted, in the ab-sence
of mandatory notice provisions and their enforcement.â€ Carefree Improvement
Assâ€™n v. City of Scottsdale, 133 Ariz. 106, 649 P. 2d 985 ( Ariz. App. 1982).
7.6.2 Notice to Members of the Public Body. Notice of all meetings, including ex-ecutive
sessions, must be given to the members of the public body. A. R. S. Â 38-
431.02( C). Generally, this requirement is met by mailing or hand- delivering a copy of
the notice to each member of the public body.
7.6.3 Notice to the Public. Notice of all meetings, including executive sessions, must
be given to the public. A. R. S. Â 38- 431.02. Giving public notice is a two step process.
Id.
7.6.3.1 Disclosure Statement. The first step is the filing by the public body of a dis-closure
statement identifying where public notices of its meetings will be posted.
Public bodies of the state must file this statement with the Secretary of State. A. R. S.
Â 38- 431.02( A)( 1). See Form 7.1. Public bodies of counties, school districts, and
19
other special districts must file this statement with the Clerk of the Board of Super-visors.
Id. Â ( A)( 2). Public bodies of cities and towns must file the statement with the
City Clerk or Mayorâ€™s office. Id. Â ( A)( 3). The location identified must be a place to
which the public has reasonable access. The location should have normal business
hours, should not be geographically isolated, should not have limited access and
should not be too difficult to find.
7.6.3.2 Public Notice of Meetings. Once the disclosure statement has been filed, the
public body must give notice of each of its meetings by posting a copy of the notice
in the public place identified in the disclosure statement and by giving â€œ such additional
public notice as is reasonable and practicable as to all meetings.â€ A. R. S. Â 38-
431.02( A). See Forms 7.2, 7.3, 7.4. Various public bodies fulfill this obligation to pro-vide
â€œ additional noticeâ€ by providing news releases to the news media concerning
proposed meetings, mailing notices to those asking to be informed of meetings, in-cluding
the date and time of such meetings in their newsletters and other publications
and providing information on the Internet or on public access television.
In addition to complying with the requirements of the Open Meeting Law, the no-tice
should conform with the provisions of the Americans with Disabilities Act ( ADA),
42 U. S. C. Â Â 12101 - 12213 ( Supp. 1992). See Sections 15.25.2 - 15.25.5. Public bod-ies
should include a statement such as the following in any notice it issues: â€œ Persons
with a disability may request a reasonable accommodation, such as a sign language
interpreter, by contacting [ name of designated agency contact person] at [ telephone
number and TDD telephone number]. Requests should be made as early as possible
to allow time to arrange the accommodation.â€
7.6.4 Contents of the Notice. Generally, the notice should include information iden-tifying
the public body and the date, time, and place of the meeting. See Forms 7.2,
7.3. In identifying the place of the meeting, the notice should specify the street address
of the building and the room number or other information identifying the specific room
in which the meeting will be held. See Form 7.7 ( Sample Notice and Agenda). In ad-dition,
the notices of public meetings and notices of executive sessions must contain
an agenda of the matters to be considered by the public body at the meeting or infor-mation
on how the public may obtain a copy of such an agenda. A. R. S. Â 38- 431.02( G).
For a complete discussion of the agenda requirements, see Section 7.7. Notice of a pub-lic
meeting at which the public body intends to ratify a prior act must contain addi-tional
specific information. See Section 7.11; Form 7.12.
7.6.5 Time for Giving Notice. As a general rule, a meeting may not be held without
giving the required notice at least twenty- four hours before the meeting. A. R. S. Â 38-
431.02( C). The best practice is for public bodies to give as much notice as possible.
There are three exceptions to the twenty- four hour notice requirement.
First, in the case of an â€œ actual emergency,â€ the meeting may be held upon such
shorter notice as is â€œ appropriate under the circumstances.â€ Id. Â ( D). An actual emer-
20
gency exists when, due to unforeseen circumstances, immediate action is necessary
to avoid some serious consequence that would result from waiting until the required
notice could be given. The existence of an actual emergency does not dispense with
the need to give twenty- four hoursâ€™ written notice to an employee to be discussed in
executive session. A. R. S. Â 38- 431.03( A)( 1); see Sections 7.7.9 and 7.9.4.
Second, notice of a meeting at which the public body is to consider the ratification
of a prior act taken in violation of the Open Meeting Law must be given seventy- two
hours in advance of the meeting. A. R. S. Â 38- 431.05( B)( 4); see Section 7.11.
Finally, less than twenty- four hoursâ€™ notice may be given when a properly noticed
meeting is recessed to a later date. A. R. S. Â 38- 431.02( E). A meeting may be re-cessed
and resumed with less than twenty- four hoursâ€™ notice if public notice of the ini-tial
session of the meeting is given, and if, before recessing, notice is publicly given
as to the time and place of the resumption of the meeting or the method by which no-tice
shall be publicly given. Id. Notice of the resumption of a meeting must comply
with the agenda requirements respecting the matters to be addressed when resumed.
Id. Â ( G). This may be accomplished by the presiding officer of the public body either
stating at the meeting the time, place, and agenda of the resumed meeting or stating
where a written notice and agenda of the resumed meeting will be posted. If an exec-utive
session is to be recessed and resumed with less than twenty- four hours notice,
the time, place, and agenda of the resumed meeting should be communicated to the
members of the public body and to the public by reconvening in public session and
following one of the two steps described above.
7.6.6 Notice of Regular Meetings. A public body that intends to meet for a specified
calendar period on a regular day or date during the calendar period, and at a regular
place and time, may post public notice of such meetings at the beginning of such pe-riod
and need not post additional notices for each meeting. A. R. S. Â 38- 431.02( F); see
Form 7.4. The notice must specify the period for which the notice is applicable. Id.
However, this method of posting notice will not satisfy the agenda requirements un-less
the notice also contains a clear statement that the agenda for any such meeting will
be available at least twenty- four hours in advance of the meeting and a statement as
to where and how the public may obtain a copy of the agenda. A. R. S. Â 38- 431.02( G).
7.6.7 Notice of Executive Sessions. When an executive session is to be held, the no-tice
must state the specific provision of law authorizing the executive session. A. R. S.
Â 38- 431.02( B); see Form 7.5. This provision requires that the notice specify the
numbered paragraph of subsection ( A) of A. R. S. Â 38- 431.03 that authorizes the ex-ecutive
session. A general citation to A. R. S. Â 38- 431.03 or subsection ( A) of that sec-tion
is insufficient. For example, a public body intending to meet in executive session
for purposes of discussing the purchase or lease of real property must cite in its no-tice
â€œ A. R. S. Â 38- 431.03( A)( 7).â€ A. R. S. Â 38- 431.02( B). The public body must cite
only the paragraphs applicable to the matters to be discussed and should not issue a
standardized form notice that cites all executive session provisions. In addition, an
21
agenda is required for an executive session. A. R. S. Â 38- 431.02( G); see Section 7.7.3.
In the case of an executive session concerning personnel matters, the public body
must give written notice to the affected officer, appointee, or employee in addition to
the public notice described above. A. R. S. Â 38- 431.03( A)( 1); see Section 7.9.4; Form
7.13. Such written notice must be provided not less than 24 hours before the sched-uled
meeting.
Many public bodies do not know whether they will have any legal questions on mat-ters
on the agenda until the discussion occurs. The Attorney General has opined that
public bodies may provide with their notices and agendas a statement that matters on
the public meeting agenda may be discussed in executive session for the purpose of
obtaining legal advice thereon, pursuant to A. R. S. Â 38- 431.03( A)( 3). Ariz. Attâ€™y
Gen. Op. I90- 19. An example of such a statement is â€œ The Board may vote to hold an
executive session for the purpose of obtaining legal advice from the Boardâ€™s attorney
on any matter listed on the agenda pursuant to A. R. S. Â 38- 431.03( A)( 3).â€ Similar state-ments
are not sufficient for other types of executive sessions. See Section 7.7 for fur-ther
discussion.
7.6.8 Combined Notice of Public Meeting and Executive Session. In many cases
the public body may want to have the option to retire into executive session during the
course of a public meeting. Although separate notices of the public meeting and ex-ecutive
session may be given pursuant to Sections 7.6.6 and 7.6.7, the public body may
choose to combine the notice of the public meeting and of the possible executive ses-sion
in one document. An example for doing so is set forth in Form 7.6 and the sam-ple
notice and agenda, Form 7.7.
7.6.9 Maintaining Records of Notice Given. Each public body should keep a record
of its notices, including a copy of each notice that was posted and information regarding
the date, time, and place of posting. A suggested procedure is to file in the records of
the public body a copy of the notice and a certification in a form similar to Form 7.8.
7.7 Agendas.
7.7.1 Generally. In addition to notice of the time, date, and place of the meeting, the
public body must provide an agenda of the matters to be discussed, considered, or de-cided
at the meeting. A. R. S. Â 38- 431.02( G). Although this Section provides guide-lines
for the preparation of agendas, it does not answer every question that will arise.
Specific problems should be discussed with the public bodyâ€™s legal counsel. A public
body should not have problems if it in good faith follows the Legislatureâ€™s declaration
of policy that agendas â€œ contain such information as is reasonably necessary to inform
the public of the matters to be discussed or decided.â€ A. R. S. Â 38- 431.09. If there is
a doubt, all questions should be resolved in favor of greater disclosure of information.
22
7.7.2 Contents of the Agenda â€” Public Meeting. The agenda for a public meeting
must contain a listing of the â€œ specific matters to be discussed, considered or decided
at the meeting.â€ A. R. S. Â 38- 431.02( H). This requirement does not permit the use of
generic agenda items such as â€œ personnel,â€ â€œ new business,â€ â€œ old business,â€ or â€œ other
mattersâ€ unless the specific matters or items to be discussed are separately identified.
See Thurston v. City of Phoenix, 157 Ariz. 343, 344, 757 P. 2d 619, 620 ( App. 1988).
The degree of specificity of the agenda depends on the circumstances. For example,
if an environmental board is going to consider the approval of pesticides for applica-tion
within 1/ 4 mile of a school, a listing such as â€œ Approval of pesticides for applica-tion
within 1/ 4 mile of a schoolâ€ is sufficient. However, if the board is going to
consider removing a pesticide from the approved list, the agency should specify the
pesticide being considered for removal. See Form 7.7 ( Sample Notice and Agenda).
If it is likely that the public body will find it necessary to discuss any particular
agenda item in executive session with the public bodyâ€™s attorney, the agenda should
plainly say so. For example, the agenda might include a provision stating â€œ The Board
may vote to hold an executive session for the purpose of obtaining legal advice from
the Boardâ€™s attorney on any matter listed on the agenda pursuant to A. R. S. Â 38-
431.03( A)( 3).â€
7.7.3 Contents of the Agendaâ€” Executive Session. The agenda for an executive
session must contain a â€œ general description of the matters to be consideredâ€ A. R. S. Â
38- 431.02( I). The description must amount to more than just a recital of the statuto-ry
provisions authorizing the executive session, but should not contain any informa-tion
that â€œ would defeat the purpose of the executive session, compromise the legitimate
privacy interests of a public officer, appointee or employee or compromise the attor-ney-
client privilege.â€ Id. In preparing executive session agenda items, the public body
must weigh the legislative policy favoring public disclosure and the legitimate confi-dentiality
concerns underlying the executive session provision. For example, if a board
desires to consider the possible dismissal of its executive director, the board may list
on the agenda â€œ Personnel matter â€” consideration of continued employment of the
boardâ€™s executive director.â€ However, when the public disclosure of the boardâ€™s con-sideration
of charges against an employee might needlessly harm the employeeâ€™s rep-utation
or compromise the employeeâ€™s privacy interests, the board may eliminate
from the agenda description the identity of the employee being considered. If it is al-ready
publicly known that the board is considering charges against the employee,
disclosure of the employeeâ€™s identity in the agenda would not defeat the purpose of
the executive session.
7.7.4 Distribution of the Agenda. The agenda may be made available to the public
by including it as part of the public notice or by stating in the public notice how the
public may obtain a copy of the agenda and then distributing the agenda in the man-ner
prescribed. A. R. S. Â 38- 431.02( G); see Forms 7.2 - 7.4, 7.6, 7.7.
Because both the public notice and the agenda must be available at least twenty-
23
four hours in advance of a meeting, the simplest procedure is to include the agenda
with the public notice. See Form 7.7 ( Sample Notice and Agenda).
However, when the public notice is issued well in advance of a meeting, as in the
case of notice of regularly scheduled meetings, see Section 7.6.6, it may be more ap-propriate
to state how the public may obtain a copy of the agenda and distribute it ac-cordingly.
7.7.5 Consent Agendas. Public bodies may use â€œ consent agendasâ€ so long as certain
requirements are met. Consent agendas are typically used as a time- saving device when
there are certain items on the agenda which are unlikely to generate controversy and
are ministerial in nature. Some examples are approval of travel requests and approval
of minutes. Public bodies often take one vote to approve or disapprove the consent
agenda as a whole. When using a consent agenda format for some of the items on a
meeting agenda, public bodies should fully describe the matters on the agenda and in-form
the public where more information can be obtained. A good practice is to require
that an item be removed from the consent agenda upon the request of any member of
the public body. See Form 7.7 ( Sample Notice and Agenda).
Public bodies should take caution when using consent agendas. The Arizona
Supreme Court has held that taking legal action, including that taken after an execu-tive
session, must be preceded by a disclosure of â€œ that amount of information suffi-cient
to apprise the public in attendance of the basic subject matter of the action so that
the public may scrutinize the action taken during the meeting â€¦ .â€ Karol v. Board of
Educ. Trustees, 122 Ariz. 95, 98, 593 P. 2d 649, 652 ( 1979). The court also specifically
condemned the practice of voting on matters designated only by number, thereby ef-fectively
hiding actions from public examination. Id.
7.7.6 Discussing and Deciding Matters Not Listed on the Agenda. The public body
may discuss, consider, or decide only those matters listed on the agenda and â€œ other mat-ters
related thereto.â€ A. R. S. Â 38- 431.02( H). The â€œ other mattersâ€ clause provides
some flexibility to a public body but should be used cautiously. The â€œ other mattersâ€
must in some reasonable manner be â€œ relatedâ€ to an item specifically listed on the agen-da.
Thurston v. City of Phoenix, 157 Ariz. 343, 344, 757 P. 2d 619, 620 ( App. 1988).
If a matter not specifically listed on the agenda is brought up during a meeting, the
better practice, and the one that will minimize subsequent litigation, is to defer dis-cussion
and decision on the matter until a later meeting so that the item can be â€œ specif-icallyâ€
listed on the agenda. If the matter demands immediate attention and is a true
emergency, the public body should consider using the emergency exception described
in Section 7.6.9.
7.7.7 Calls to the Public. In 2000, the Legislature clarified the limitations on open calls
to the public during public meetings. A. R. S. Â 38- 431.01( G) now provides that a pub-lic
body may make an open call to the public to allow individuals to address the pub-lic
body on any issue within the jurisdiction of the public body. Members of the public
24
body may not discuss or take action on matters raised during the call to the public that
are not specifically identified on the agenda. A. R. S. Â 38- 431.01( G). Public body
members may, however, respond to criticism made by those who have addressed the
public body, ask staff to review a matter, or ask that a matter be put on a future agen-da.
Id. See also Ariz. Attâ€™y Gen. Op. I99- 006.
The best practice is to include language similar to the following on the agenda to
explain in advance the reason members of the public body cannot respond to topics
brought up during the call to the public that are not on the agenda: â€œ Call to the Pub-lic:
This is the time for the public to comment. Members of the Board may not dis-cuss
items that are not specifically identified on the agenda. Therefore, pursuant to
A. R. S. Â 38- 431.01( G), action taken as a result of public comment will be limited to
directing staff to study the matter, responding to any criticism or scheduling the mat-ter
for further consideration and decision at a later date.â€
7.7.8 Current Event Summaries. The Open Meeting Law allows the chief adminis-trator
or presiding officer of a public body to present a brief summary of current
events without listing in the agenda the specific matters to be summarized, provided
that the summary is listed on the agenda and that the public body does not propose,
discuss, deliberate or take legal action at that meeting on any matter in the summary
unless the specific matter is properly noticed for legal action. A. R. S. Â 38- 431.02( K).
Public bodies should limit the use of this provision to appropriate situations and
should strive to provide as much advance information as possible to the public.
7.7.9 Emergencies. A public body may discuss, consider, and decide a matter not on
the agenda when an actual emergency exists requiring that the body dispense with the
advance notice and agenda requirements. A. R. S. Â 38- 431.02( D). See Section 7.6.5 for
a discussion of what constitutes an actual emergency.
To use the emergency exception, the public body must do several things. First, the
public body must give â€œ such notice as is appropriate to the circumstancesâ€ and must
â€œ post a notice within twenty- four hours declaring that an emergency session has been
heldâ€ and setting forth the same information as is required in an agenda for a regular
meeting. A. R. S. Â 38- 431.02( D); see Form 7.9.
Next, prior to the emergency discussion, consideration, or decision, the public
body must announce in a public meeting the reasons necessitating the emergency ac-tion.
A. R. S. Â 38- 431.02( J). If the emergency discussion or consideration is to take
place in an executive session, this public announcement must occur at a public meet-ing
prior to the executive session. Id.
Finally, the public body must place in the minutes of the meeting a statement of the
reasons for the emergency. Id. In the case of an executive session, this statement will
appear twice, once in the minutes of the public meeting where the reasons were pub-licly
announced, and again in the minutes of the executive session where the emergency
discussion or consideration took place. See Section 7.8.2( 7).
25
7.7.10 Changes to the Agenda. If a public body finds it necessary to change an agen-da
by modifying the listed matters or adding new ones, a new agenda must be prepared
and distributed in the same manner as the original agenda, at least twenty- four hours
in advance of the meeting. Ariz. Attâ€™y Gen. Op. I79- 45. Changes in the agenda with-in
twenty- four hours of the meeting may be made only in case of emergency. Ariz. Attâ€™y
Gen. Op. I79- 192; see Section 7.7.9.
7.8 Minutes.
Minutes must be taken of all public meetings and executive sessions, except that min-utes
need not be taken of meetings conducted by subcommittees and advisory com-mittees.
A. R. S. Â 38- 431.01( B).
7.8.1 Form of and Access to the Minutes. Minutes may be taken in writing or may
be recorded by a tape recorder or video tape recorder. A. R. S. Â 38- 431.01( B); see
Forms 7.10, 7.11. The minutes of a public meeting must be available for public in-spection
within three working days after the meeting. A. R. S. Â 38- 431.01( D). Public
bodies concerned about distributing minutes before they have been officially approved
at a subsequent meeting should mark the minutes â€œ draftâ€ or â€œ unapprovedâ€ and make
them available within three working days of the meeting. In no event should minutes
be withheld from the public pending approval. Minutes must be reduced to a form that
is readily accessible to the public. See id. If the minutes have been recorded by a me-chanical
recorder, allowing the public to have access to that recording is sufficient.
However, if the minutes were taken in shorthand, those minutes must be typed or writ-ten
out in longhand in order to comply with this requirement. See Form 7.10. The min-utes
of an executive session are confidential and may not be disclosed to anyone
except certain authorized persons. A. R. S. Â 38- 431.03( B); see Section 7.8.4. To ensure
confidentiality, minutes of executive sessions should be stored separately from regu-lar
session minutes to avoid inadvertent disclosure.
7.8.2 Contents of the Minutes of Public Meetings. The minutes of a public meet-ing
must contain the following information:
1. â€œ The date, time and place of the meeting.â€ A. R. S. Â 38- 431.01( B)( 1).
2. â€œ The members of the public body recorded as either present or absent.â€ Id. Â
( B)( 2).
3. â€œ A general description of the matters [ discussed or] considered.â€ Id. Â ( B)( 3).
Minutes must contain information regarding matters considered or discussed at the
meeting even though no formal action or vote was taken with respect to the mat-ter.
See id. Â ( B)( 4).
4. â€œ An accurate description of all legal actions proposed, discussed or taken and the
names of persons who proposed each motion.â€ Id. Â ( B)( 4). This does not require
that the name of each person who votes on a motion be indicated, but only that the
26
member who proposed it be shown in the minutes. Generally, however, the agency,
for its own benefit, will include the names of the member who seconded and
those who voted in favor of or against the motion. In any case, it is wise for the
minutes to reflect how the body voted and the numerical breakdown of the vote,
e. g., 3 in favor, 1 against, 1 abstention.
5. The name of each person â€œ making statements or presenting material to the pub-lic
body and a [ specific] reference to the legal action,â€ ( see item 4) to which the
statement or presentation relates. Id.
6. If the discussion in the public session did not adequately disclose the subject mat-ter
and specifics of the action taken, the minutes of the public meeting at which
such action was taken should contain sufficient information to permit the public
to investigate further the background or specific facts of the decision. See Section
7.7.5; Karol v. Board of Educ. Trustees, 122 Ariz. 95, 593 P. 2d 649 ( 1979).
7. If matters not on the agenda were discussed or decided at a meeting because of an
actual emergency, the minutes must contain a full description of the nature of the
emergency. A. R. S. Â 38- 431.02( J); see Sections 7.6.5 and 7.7.9.
8. If a prior act was ratified, the minutes must contain a copy of the disclosure state-ment
required for ratification. A. R. S. Â 38- 431.05( B)( 3); see Section 7.11.2; Form
7.10.
7.8.3 Contents of the Minutes of Executive Sessions. The minutes of executive ses-sions
must contain the following information:
1. â€œ The date, time and place of the meeting.â€ A. R. S. Â 38- 431.01( B)( 1), ( C).
2. â€œ The members of the public body recorded as either present or absent.â€ Id. Â
( B)( 2), ( C).
3. â€œ A general description of the matters considered.â€ Id. Â ( B)( 3), ( C); see Section
7.8.2( 3).
4. An accurate description of all instructions given to attorneys or designated repre-sentatives
pursuant to A. R. S. Â 38- 431.03( A)( 4), ( 5) and ( 7). See Sections 7.9.7,
7.9.8 and 7.9.10.
5. A statement of the reasons for emergency consideration of any matters not on the
agenda. See A. R. S. Â 38- 431.02( J); Section 7.8.2( 7).
6. Such other information as the public body deems appropriate. For example, the
public body might record in its minutes that those present were advised that the
information discussed in the session and the session minutes are confidential. See
Form 7.11.
Arizona courts have held that once a complainant alleges facts from which a reason-able
inference may be drawn supporting an Open Meeting Law violation, the burden
of proof immediately shifts to a public body to prove that an affirmative defense or ex-ception
to the Open Meeting Law authorized an allegedly inappropriate executive
session. Fisher v. Maricopa County Stadium Dist., 185 Ariz. 116, 122, 912 P. 2d 1345,
1351 ( App. 1995). Hence, the best practice is for public bodies to tape record or keep
27
detailed minutes of executive sessions in order to ensure that they are prepared to meet
their burden of proof in the event a lawsuit is filed.
7.8.4 Confidentiality of Executive Session Minutes. The minutes of an executive ses-sion
and all discussions that take place at an executive session are confidential and may
not be disclosed to anyone, A. R. S. Â 38- 431.03( B), except that they may be disclosed
to the following people:
1. Any member of the public body that met in the executive session and members who
did not attend the executive session. A. R. S. Â 38- 431.03( B)( 1); Picture Rocks Fire
Dist. v. Updike, 145 Ariz. 79, 699 P. 2d 1310 ( App. 1985).
2. Any officer, appointee, or employee who was the subject of discussion at an ex-ecutive
session authorized by A. R. S. Â 38- 431.03( A)( 1) may see those portions of
the minutes directly pertaining to them. A. R. S. Â 38- 431.03( B)( 2); see Section
7.9.4.
3. Staff personnel, to the extent necessary for them to prepare and maintain the min-utes
of the executive session.
4. The attorney for the public body, to the extent necessary for the attorney to rep-resent
the public body.
5. The Auditor General in connection with the lawful performance of its duty to
audit the finances or performance of the public body. A. R. S. Â 38- 431.03( B)( 3);
Ariz. Attâ€™y Gen. Op. I79- l30.
6. The Attorney General or County Attorney when investigating alleged violations
of the Open Meeting Law. A. R. S. Â 38- 431.03( B)( 4).
7. The court, for purposes of a confidential inspection. A. R. S. Â 38- 431.07( C).
The Open Meeting Law requires that a public body advise all persons attending an ex-ecutive
session or obtaining access to executive session minutes or information that
such minutes and information are confidential. A. R. S. Â 38- 431.03( C). Public bodies
should maintain executive session minutes in a secure file separate from the public
meeting minutes to guard against accidental disclosure.
7.9 Executive Sessions.
Section 38- 431.03, A. R. S., contains an exception to the general requirement of the
Open Meeting Law that all meetings must be open to the public. That Section provides
seven specific instances in which a public body may discuss matters in an executive
session. An executive session is defined as â€œ a gathering of a quorum of members of
a public body from which the public is excluded for one or more of the reasons pre-scribed
in [ A. R. S. Â 38- 431.03].â€ A. R. S. Â 38- 431( 2). An executive session may be con-vened
solely for the purpose of discussing matters and, in limited instances, giving
instructions to attorneys and designated representatives. A. R. S. Â 38- 431.03( D). No
legal action may be taken in the executive session. Id.
28
Arizona courts have strictly construed the seven authorized executive session top-ics
because their legislative charge is to â€œ promote openness in government, not to ex-pand
exceptions which could be used to obviate the rule.â€ See Fisher v. Maricopa
County Stadium Dist., 185 Ariz. 116, 124, 912 P. 2d 1345, 1353 ( App. 1995). Thus, un-less
the proposed discussion plainly falls within one of the Open Meeting Law exec-utive
session topics or is specifically authorized by the public bodyâ€™s enabling
legislation, discussion should take place only in a public meeting.
In litigation, the burden of proof is initially on the complainant to â€œ allege facts from
which a reasonable inference may be drawn supporting an Open Meeting Law viola-tion.â€
Id., 185 Ariz. at 122, 912 P. 2d at 1351. The burden then immediately shifts to
the public body to prove that an affirmative defense or exception to the Open Meet-ing
Law authorized the executive session. Id.
7.9.1 Deciding to Go Into Executive Session. Before a public body may go into ex-ecutive
session, a majority of the members constituting a quorum must vote in a pub-lic
meeting to hold the executive session. A. R. S. Â 38- 431.03( A). Generally, the vote
will be taken immediately before going into executive session. However, in some
cases an agency may know that at a future date it will need to meet in executive ses-sion,
in which case it can then vote at the public meeting to meet on the later date in
executive session. On that future date, the agency does not have to first meet again in
a public session.
7.9.2 Executive Session Requirements. Once the majority of members of a public
body has voted to hold an executive session, the chairman of the public body should
ask the public to leave and remove all materials such as briefcases and backpacks to
ensure that no recording devices have been left in the room. All persons must leave
the meeting except the members of the public body and those individuals whose pres-ence
is reasonably necessary for the public body to carry out its executive session re-sponsibilities.
A. R. S. Â 38- 431( 2). The chairman should remind all present that the
business conducted in executive sessions is confidential pursuant to A. R. S. Â 38-
431.03( C).
7.9.3 Authorized Executive Sessions. The Open Meeting Law permits only seven cat-egories
of topics to be discussed in executive session. A. R. S. Â 38- 431.03( A). These
seven categories are discussed in Sections 7.9.4 - 7.9.10. Because courts are likely to
strictly construe these provisions, unless the proposed discussion plainly falls within
an executive session category it should take place only in a public meeting. Finally,
the Open Meeting Law does not require that these discussions take place in executive
session. If public disclosure of the public bodyâ€™s discussion is not prohibited by any
other statutory provision and government interests are not threatened, a public body
may choose to conduct its discussions in a public setting.
7.9.4 Personnel Matters. The discussion or consideration of employment, assignment,
29
appointment, promotion, demotion, salaries, discipline, resignation, or dismissal of a
public officer, appointee, or employee of a public body may take place in an execu-tive
session. A. R. S. Â 38- 431.03( A)( 1); City of Flagstaff v. Bleeker, 123 Ariz. 436, 600
P. 2d 49 ( App. 1979). This authorization for an executive session applies only to dis-cussions
concerning specific officers, appointees, and employees. This provision per-mits
discussion in executive session of applicants for employment or appointment even
though the applicants may not be currently employed by the public body.
If the affected officer, appointee, or employee requests, these discussions must be
conducted in a public meeting and not in an executive session. A. R. S. Â 38-
431.03( A)( 1). Accordingly, the Open Meeting Law requires that an officer, appointee,
or employee who is the subject of the discussion in executive session must be given
advance written notice of the proposed executive session. Id. The notice given to the
officer, appointee, or employee must describe the matters to be considered by the
public body in a manner sufficient to enable the employee to make the initial decision
whether to have the matters discussed in a public meeting. Id. In addition, the written
notice must be given sufficiently in advance of the proposed meeting, and in no event
less than twenty- four hours prior to the meeting, to enable the employee to make the
foregoing determination and to prepare an appropriate request for a public meeting.
Id.; see Ariz. Attâ€™y Gen. Op. I79- 49. See also Form 7.13. There is no emergency ex-ception
to the requirement that an affected officer, appointee, or employee receive at
least twenty- four hoursâ€™ notice. However, the public body can discuss personnel mat-ters
in a public meeting with less than twenty- four hoursâ€™ notice if an actual emergency
exists. A. R. S. Â 38- 431.02( D). See Sections 7.6.5 and 7.7.9.
Although the public body may permit the public officer, appointee, or employee
being discussed to attend the executive session, the Open Meeting Law is unclear
whether he has the right to attend. Whether he attends or not, the public body must
make the minutes of the executive session available to the public officer, appointee,
or employee who was the subject of discussion in the executive session. A. R. S. Â 38-
431.03( B)( 2).
A public body may consider several persons for possible appointment to a position
or consider several employees for possible disciplinary action. In such cases, the pub-lic
body may consider the matter in executive session provided all those being con-sidered
are given the required notice. If some, but not all of those given notice request
a public meeting, the public body has two options: the public body may limit the pub-lic
discussion to those persons filing the request and discuss the remaining persons in
an executive session; or, because the Open Meeting Law does not require the public
body to discuss personnel matters in executive session, the public body may discuss
the entire matter in a public meeting.
Public bodies should take care to ensure that the scope of executive sessions for per-sonnel
discussions is limited to true personnel matters. The Attorney General has
opined that the Open Meeting Law prohibits public bodies from conducting in exec-utive
sessions lengthy information gathering meetings that explore the operation of pub-lic
programs under the guise of conducting a personnel evaluation. Only the actual
30
evaluationâ€” discussion or consideration of the performance of the employeeâ€” may
take place in an executive session. Ariz. Attâ€™y Gen. Op. I96- 012. A public body that
wishes to discuss or consider an employeeâ€™s evaluation in executive session, pursuant
to A. R. S. Â 38- 431.03( A)( 1), should adopt a bifurcated process that would permit the
public body to gather information about public programs at a public meeting, while
allowing the public body to enter executive session to discuss or consider the actual
evaluation. Ariz. Attâ€™y Gen. Op. I96- 012.
7.9.5 Confidential Records. An executive session may be held when the public body
is considering or discussing â€œ records exempt by law from public inspection.â€ A. R. S.
Â 38- 431.03( A)( 2). This specifically includes situations in which the public body is
receiving and discussing â€œ information or testimony that is specifically required to be
maintained as confidential by state or federal law.â€ Id. This provision allows the use
of an executive session whenever the public body intends to discuss or consider mat-ters
contained in records that are confidential by law. See Ariz. Attâ€™y Gen. Ops. I90-
058, I87- 131. However, when confidential matters can be adequately safeguarded, the
discussion may take place during a public meeting. Cf. Ariz. Attâ€™y Gen. Op. I87- 038
( medical records). The record being considered need not be expressly made confi-dential
by statute, but rather may fall within the category of confidential records dis-cussed
in Chapter 6 of this handbook. For example, to preserve confidentiality,
preliminary audit reports of state agencies prepared by the Auditor General are con-fidential
and should be discussed by the public body in executive session. Ariz. Attâ€™y
Gen. Op. I80- 035. Similarly, complaints against licensees that are investigated by a
public body may be discussed in executive session. Ariz. Attâ€™y Gen. Op. I83- 006. In
2000, the Legislature revised the statute to allow public bodies to take testimony in ex-ecutive
sessions in certain situations. Public bodies should ensure that state or feder-al
law requires that the public body maintain confidentiality of the information it
receives before convening an executive session under A. R. S. Â 38- 431.03( A)( 2).
7.9.6 Legal Advice. A public body may also go into executive session for the purposes
of â€œ discussion or consultation for legal advice with the attorney or attorneys of the pub-lic
body.â€ A. R. S. Â 38- 431.03( A)( 3). For this exemption to apply, the attorney giving
the legal advice must be the attorney for the public body. Id. For purposes of this dis-cussion,
the â€œ attorney for the public bodyâ€ means a licensed attorney representing the
public body, whether that attorney is a full time employee of the body, the attorney gen-eral
or county, city, or town attorney responsible for representing the public body, an
attorney hired on contract, or an attorney provided by an insurance carrier to represent
the public body.
This provision authorizes consultations between a public body and its attorney. Ac-cordingly,
the only persons allowed to attend this executive session are the members
of the public body, the public bodyâ€™s attorney, and those employees and agents of both
whose presence is necessary to obtain the legal advice. The mere presence of an at-torney
of the public body in the meeting room is not sufficient to justify the use of this
31
executive session provision. This provision can only be used for the purpose of ob-taining
â€œ legal advice,â€ which involves the exchange of communications between
lawyer and client. Once the legal advice has been obtained, the public body must go
back into public session unless some other executive session provision applies and has
been identified in the notice. See City of Prescott v. Town of Chino Valley, 166 Ariz.
480, 803 P. 2d 891 ( 1990). Discussion between the members of the public body about
what action should be taken is beyond the realm of legal advice, and such discussions
must be held in public session.
7.9.7 Litigation, Contract Negotiations, and Settlement Discussions. A public
body may hold an executive session for the purpose of â€œ[ d] iscussion or consultation
with the attorneys of the public body in order to consider its position and instruct its
attorneys regarding the public bodyâ€™s position regarding contracts that are the subject
of negotiations, in pending or contemplated litigation or in settlement discussions
conducted in order to avoid or resolve litigation.â€ A. R. S. Â 38- 431.03( A)( 4). This
provision allows consideration and instruction onlyâ€” it does not allow a public body
to conduct contract negotiations or settlement discussions in an executive session.
This provision allows a public body to give its attorneys instructions on how they
should proceed in contract negotiations, pending or contemplated litigation involving
the public body, and settlement discussions. For example, the public body might au-thorize
its attorney to settle a lawsuit on the most favorable terms possible up to a cer-tain
amount. Of course, if the attorney were to obtain an agreed settlement, the public
body must formally approve it at a public meeting.
This provision is unique in that it permits public bodies to â€œ instructâ€ their attorneys.
In these limited situations, the public body must be able to discuss and arrive at some
consensus on its position before it instructs its legal counsel. Executive session min-utes
must contain an accurate description of all instructions given. A. R. S. Â 38-
431.01( C).
The discussion in Section 7.9.6 of the definition of â€œ attorney for the public bodyâ€
applies with equal force to this Section.
7.9.8 Employee Salary Discussions. A public body may hold an executive session for
the purpose of â€œ[ d] iscussions or consultations with designated representatives of the
public body in order to consider its position and instruct its representatives regarding
negotiations with employee organizations regarding the salaries, salary schedules or
compensation paid in the form of fringe benefits of employees of the public body.â€
A. R. S. Â 38- 431.03( A)( 5). This provision permits a public body, in executive session,
to consult and discuss with its representatives its position on negotiating salaries or
compensation paid in the form of fringe benefits and instruct representatives on how
they should deal with the employee organizations. It does not authorize an executive
session for purposes of meeting with the employeesâ€™ representative. If the public body
or any standing, special, or advisory committee or subcommittee of the public body
conducts the negotiations, those negotiations must be conducted in a public meeting.
32
This provision also allows the public body to â€œ instructâ€ its representatives. The dis-cussion
in Section 7.9.7 of the practice of confirming instructions in public session and
the minute- taking requirements applies with equal force to this Section.
7.9.9 International, Interstate, and Tribal Negotiations. A public body may go
into executive session for the purpose of â€œ[ d] iscussion, consultation, or consideration
for international and interstate negotiations.â€ A. R. S. Â 38- 431.03( A)( 6). This provision
does not apply to meetings at which the public body receives recommendations from
representatives of federal agencies. Ariz. Attâ€™y Gen. Op. I80- 159.
This provision also permits a city or town, or its designated representatives, to
enter into executive session with â€œ members of a tribal council, or its designated rep-resentatives,
of an Indian reservation located within or adjacent to the city or town.â€
A. R. S. Â 38- 431.03( A)( 6). This is the only type of executive session in which nego-tiations
with another party can take place.
7.9.10 Purchase, Sale or Lease of Real Property. A public body may meet in exec-utive
session to discuss and consult with its representatives concerning negotiations
for the purchase, sale, or lease of real property. A. R. S. Â 38- 431.03( A)( 7). This pro-vision
does not authorize an executive session for the purpose of meeting with repre-sentatives
of the party with whom the public body is negotiating. This provision
permits the public body to instruct its representatives regarding the purchase, sale or
lease. For example, the public body can authorize its representative to negotiate up to
a certain amount. Of course, the final contract must be approved by the public body
in a public meeting.
This provision also allows the public body to â€œ instructâ€ its representatives. The dis-cussion
in Section 7.9.7 of the practice of confirming instructions in public session and
the minute- taking requirements applies with equal force to this Section.
7.9.11 Taking Legal Action. In an executive session, the public body may discuss and
consider only the specific matters authorized by the statute. Furthermore, the public
body may not take a vote or make a final decision in the executive session, but rather
must reconvene in a public meeting for purposes of taking the binding vote or mak-ing
final decisions. Taking a straw poll or informal or preliminary vote in executive
session is unlawful under the Open Meeting Law. See A. R. S. Â 38- 431.03( D).
7.10 Public Access to Meetings.
7.10.1 Public Participation and Access. The public must be allowed to attend and
listen to deliberations and proceedings taking place in all public meetings, A. R. S. Â
38- 431.01( A); however, the Open Meeting Law does not establish a right for the pub-lic
to participate in the discussion or in the ultimate decision of the public body, Ariz.
Attâ€™y Gen. Op. 78- 1. Other statutes may, however, require public participation or
33
public hearings. For example, before promulgating rules, state agencies must permit
public participation in the rule making process, including the opportunity to present
oral or written statements on the proposed rule. See Chapter 11. See also Section
7.7.2 for a discussion of the authorization ( but not requirement) for public bodies to
use an open call to the public.
The public body must provide the public with access to all public meetings. See
A. R. S. Â 38- 431.01( A). This requirement is not met if the public body invokes any pro-cedure
or device that obstructs or inhibits public attendance at public meetings, such
as requiring persons to sign in before they are permitted to attend the meeting or
holding the meeting in a remote location, in a room too small to accommodate the rea-sonably
anticipated number of observers, in a place to which the public does not have
access, such as private clubs, or at an unreasonable time, such as 6: 00 A. M. The Open
Meeting Law, however, does not prevent a public body from requiring persons who
intend to speak at the meeting to sign a register so as to permit the public body to com-ply
with the minute- taking requirements. See Section 7.8.2( 5).
In addition to complying with the Open Meeting Law, the notice and accommo-dations
should conform with the provisions of the Americans with Disabilities Act
( ADA), 42 U. S. C. Â Â 12101 - 12213 ( Supp. 1992). See Sections 15.25.2 - 15.25.5. The
public body may want to include a statement such as the following in any notice it is-sues:
â€œ Persons with a disability may request a reasonable accommodation, such as a
sign language interpreter, by contacting [ name of designated agency contact person]
at [ telephone number and TDD telephone number]. Requests should be made as early
as possible to allow time to arrange the accommodation.â€
7.10.2 Telephone Conferences. If one or more members of a public body are unable
to be present in person at a public meeting, they may nevertheless participate by tele-phone
or video conference if the practice is approved by the public body and is not
prohibited by statutes applicable to meetings of the public body. Ariz. Attâ€™y Gen.
Ops. I91- 033, I83- 135. This practice presents several practical and legal problems and
should be used only where there are no reasonable alternatives to presence at the
meeting.
A public body must comply with the following guidelines to avoid violations of the
Open Meeting Law.
1. The notice and the agenda should state that one or more members of the public
body will participate by telephonic or video communications. In the appropriate
notice, insert the following after the first sentence: â€œ Members of the [ name of pub-lic
body] will attend either in person or by telephone conference call.â€
2. The public meeting place where the public body normally meets should have fa-cilities
that permit the public to observe and hear all telephone or video commu-nications.
3. The public body should develop procedures for clearly identifying all members par-ticipating
by telephonic or video communications.
4. The minutes of the meeting should identify the members participating by tele-
34
phonic or video communications and describe the procedures followed to provide
the public access to all communications during the meeting.
7.10.3 Recording the Proceedings. â€œ All or any part of a public meeting â€¦ may be
recorded by any person in attendance by means of a tape recorder, camera or other
means of sonic reproduction.â€ A. R. S. Â 38- 431.01( E). A public body may prohibit or
restrict such recordings only if they actively interfere with the conduct of the meet-ing.
Id.
7.11 Ratification.
7.11.1 Generally. A public body may ratify action previously taken in violation of the
Open Meeting Law. See A. R. S. Â 38- 431.05( B). Ratification is appropriate when the
public body needs to retroactively validate a prior act in order to preserve the earlier
effective date of the action. For example, a public body may be required by law to ap-prove
its budget by a certain date. If the public body discovered after the statutory dead-line
that its earlier approval violated the Open Meeting Law, it could face serious legal
problems. Even if the body met quickly to properly approve the budget, the approval
would not have been made prior to the statutory deadline. Accordingly, the 1982
amendments permit the public body to meet and approve retroactively the action pre-viously
taken â€” that is, to ratify its prior action.
Ratification merely validates the prior action; it does not eliminate liability of the
public body or others for sanctions under the Open Meeting Law, such as civil penal-ties
and attorneyâ€™s fees.
7.11.2 Procedure for Ratification. The Open Meeting Law provides a detailed pro-cedure
for ratification. A. R. S. Â 38- 431.05( B). That procedure is as follows:
1. The decision to ratify must take place at a public meeting held in accordance with
the Open Meeting Law.
2. The decision to ratify must be taken within thirty days after discovery of the vio-lation
or after such discovery should have been made by the exercise of reasonable
diligence. A complaint from the public or the press that a public body has violat-ed
the Open Meeting Law should be investigated promptly, as a court may view
this communication as the â€œ discoveryâ€ from which the thirty day period runs.
3. The public notice of the meeting at which ratification is to take place, in addition
to complying with the other requirements of the Open Meeting Law, see Sections
7.6 and 7.7, must include ( a) a description of the action to be ratified, ( b) a clear
statement that the public body proposes to ratify a prior action, and ( c) informa-tion
on how the public may obtain a written description of the action to be ratified.
See Form 7.12.
4. In addition to the notice and agenda of the meeting, the public body must make
available to the public a detailed written description of the action to be ratified and
35
a description of all prior deliberations, consultations, and decisions by members
of the public body related to the action to be ratified.
5. The description required under paragraph 4 must be included as part of the min-utes
of the meeting at which the decision to ratify was made.
6. The public notice, agenda, and written description discussed in paragraphs 3 and
4 must be made available to the public at least seventy- two hours prior to the
public meeting.
7.12 Sanctions for Violations of the Open Meeting Law.
7.12.1 Nullification. All legal action transacted by any public body during a meeting
held in violation of any provision of the Open Meeting Law is null and void unless sub-sequently
ratified. A. R. S. Â 38- 431.05. The procedures for ratification are described
in Section 7.11.2.
The Arizona Supreme Court, however, has held that legal actions taken in violation
of the Open Meeting Law are voidable at the discretion of the court. Karol v. Board
of Educ. Trustees, 122 Ariz. 95, 97, 593 P. 2d 649, 651 ( 1979). In the Karol case, the
court held that: â€œ[ A] technical violation having no demonstrated prejudicial effect on
the complaining party does not nullify all the business in a public meeting when to con-clude
otherwise would be inequitable, so long as the meeting complies with the intent
of the legislature.â€ Id., 122 Ariz. at 98, 593 P. 2d at 652. This decision imposes a sub-stantial
compliance test and requires a weighing of the equities before a court will de-clare
an action void. The decision, however, preceded the 1982 amendment to the Open
Meeting Law which specifically authorizes a procedure for ratification. It remains to
be seen whether this change will cause the court to follow the literal language of the
Open Meeting Law. Nevertheless, the serious consequences that flow from having an
action of a public body declared void should serve to remind the public body that it
should take every precaution to avoid even technical violations of the Open Meeting
Law.
In some cases, the public body may have discussed a matter at an unlawful meet-ing,
but thereafter met in a lawful open meeting at which it took a formal vote as its
â€œ final action.â€ The Arizona Court of Appeals has held that the subsequent â€œ final ac-tionâ€
taken at a lawful meeting is not void. Valencia v. Cota, 126 Ariz. 555, 6l7 P. 2d
63 ( App. 1980). The public body taking the final action at the subsequent lawful
meeting should make available at that time the substance of all discussions that took
place at the earlier unlawful meeting. If the public body wishes to preserve the effec-tive
date of the earlier action rather than simply redecide the matter, it must go through
the ratification process. See Section 7.11.
7.12.2 Investigation and Enforcement. The 2000 Legislature enacted substantial re-visions
to the Open Meeting Law, including extensive changes to the investigation and
enforcement provisions of the law. The Attorney General and County Attorneys are
36
authorized to investigate alleged Open Meeting Law violations. A. R. S. Â 38- 431.06.
The Open Meeting Law now specifically provides that the Attorney General and
County Attorneys shall have access to executive session minutes when they are in-vestigating
alleged violations of the Open Meeting Law. A. R. S. Â 38- 431.03( B)( 4). The
Open Meeting Law also provides that disclosure of executive session information
( such as disclosure to the Attorney General) does not constitute a waiver of the attor-ney-
client privilege and directs courts reviewing executive session information to pro-tect
privileged information. Id. Â ( F).
The investigative authority of the Attorney General and County Attorneys was
strengthened by the 2000 Legislature. The Attorney General and County Attorneys may
issue written investigative demands to any person, administer oaths or affirmations to
any person for the purpose of taking testimony, conduct examinations under oath, ex-amine
accounts, books, computers, documents, minutes, papers and recordings, and
require people to file written statements, under oath, of all the facts and circumstances
requested by the Attorney General or County Attorney. A. R. S. Â 38- 431.06( B). If a per-son
fails to comply with a civil investigative demand, the Attorney General or Coun-ty
Attorney may seek enforcement of the demand in Superior Court.
Any person affected by â€œ legal actionâ€ of a public body, the Attorney General, or
the County Attorney for the county in which the alleged violation occurred, may file
suit in superior court to require compliance with or prevent violations of the Open
Meeting Law or to determine whether the law is applicable to certain matters or legal
actions of the public body. A. R. S. Â 38- 431.07.
Additionally, when the provisions of the Open Meeting Law have not been com-plied
with, a court of competent jurisdiction may issue a writ of mandamus requiring
a meeting to be open to the public. A. R. S. Â 38- 431.04. A writ of mandamus is an order
of the court compelling a public officer to comply with certain mandatory responsi-bilities
imposed by law.
7.12.3 Civil Penalties. The court may impose a civil penalty not exceeding five hun-dred
dollars against any person for each violation of the Open Meeting Law. A. R. S.
Â 38- 431.07( A). This penalty can be assessed against a person who violates the Open
Meeting Law or who knowingly aids, agrees to aid or attempts to aid another person
in violating the Open Meeting Law. Id. This penalty is assessed against the individ-ual
and not the public body, and the public body may not pay the penalty on behalf
of the person assessed, see id.
7.12.4 Attorneyâ€™s Fees. The court may also order payment of reasonable attorneyâ€™s
fees to a successful plaintiff in an enforcement action brought under the Open Meet-ing
Law. A. R. S. Â 38- 431.07( A). Normally those fees will be paid by the state or po-litical
subdivision of which the public body is a part or to which it reports. Id. However,
if the court determines that a public officer violated the Open Meeting Law â€œ with in-tent
to deprive the public of information or of the opportunity to be heard,â€ the court
must assess against that public officer or a person who knowingly aided, agreed to aid
37
or attempted to aid the public officer in violating the Open Meeting Law all of the costs
and attorneyâ€™s fees awarded to the plaintiff. Id. As in the case of an award of civil penal-ties,
the public body may not pay such an award of attorneyâ€™s fees assessed against the
public officer individually. See id.
7.12.5 Expenditure for Legal Services by Public Body Relating to the Open Meet-ing
Law. A public body may not retain counsel or expend monies for legal services
to defend an action brought under the Open Meeting Law unless the public body has
legal authority to make such an expenditure pursuant to other provisions of law and
it approves the expenditure at a properly noticed open meeting prior to incurring the
obligation. A. R. S. Â 38- 431.07( B).
7.12.6 Removal From Office. If the court determines that a public officer violated the
Open Meeting Law â€œ with intent to deprive the public of information or of the oppor-tunity
to be heard,â€ the court may remove the public officer from office. A. R. S. Â 38-
431.07( A).
38
Form 7.1
Disclosure Statement
Section 7.6.3.1
STATEMENT OF LOCATIONS WHERE ALL NOTICES OF THE
MEETINGS OF THE [ NAME OF PUBLIC BODY] WILL BE POSTED
TO: THE HONORABLE SECRETARY OF STATE and THE CITIZENS OF
ARIZONA
Pursuant to A. R. S. Â 38- 431.02, the [ name of public body] hereby states that all no-tices
of the meetings of the [ name of public body] and any of its committees and sub-committees
will be posted [ identify the location where notices will be posted and
include the hours during which such locations are open to the public, for example, â€œ in
the lobby of the State Capitol located at 1700 West Washington, Phoenix, Arizona, and
at the press room of the State Senate Building, 1700 West Washington, Phoenix, Ari-zona.
Both locations are open to the public Monday through Friday from 8: 00 a. m. to
5: 00 p. m. except legal holidays.â€] Such notices will indicate the date, time, and place
of the meeting and will include an agenda or information concerning the manner in
which the public may obtain an agenda for the meeting.
Dated this ____ day of _______________, 20____.
[ name of public body]
By [ authorized signature]
39
Form 7.2
Notice of Public Meeting of a Public Body
Sections 7.6.3, 7.7.4, 7.10.1
NOTICE OF PUBLIC MEETING OF THE [ NAME OF PUBLIC BODY]
Pursuant to A. R. S. Â 38- 431.02, notice is hereby given to the members of the [ name
of public body] and to the general public that the [ name of public body] will hold a
meeting open to the public on [ date, time, and exact location].
The agenda for the meeting is as follows:
[ List the specific matters to be discussed, considered, or decided.
See Form 7.7 ( Sample Notice and Agenda)]
[ OR]
A copy of the agenda for the meeting will be available at [ location where the agenda
will be available] at least twenty- four hours in advance of the meeting.
Dated this ____ day of _______________, 20____.
[ name of public body]
By [ authorized signature]
Persons with a disability may request a reasonable accommodation, such as a sign lan-guage
interpreter, by contacting [ name, telephone number, TDD telephone number].
Requests should be made as early as possible to arrange the accommodation.
40
Form 7.3
Notice of Public Meeting of a Subcommittee or Advisory Committee
of a Public Body
Sections 7.6.3, 7.10.1
NOTICE OF MEETING OF THE [ NAME OF SUBCOMMITTEE
OR ADVISORY COMMITTEE] OF THE [ NAME OF PUBLIC BODY]
Pursuant to A. R. S. Â 38- 431.02, notice is hereby given to the members of the [ name
of committee] of the [ name of public body] and to the general public that the [ name
of committee] of the [ name of public body] will hold a meeting open to the public on
the [ date, time, and exact location].
The agenda for the meeting is as follows:
[ List the specific matters to be discussed, considered or decided.
See Form 7.7 ( Sample Notice and Agenda)]
[ OR]
A copy of the agenda for the meeting will be available at [ location where the agenda
will be available] at least twenty- four hours in advance of the meeting.
Dated this ____ day of _______________, 20____.
[ name of public body]
By [ authorized signature]
Persons with a disability may request a reasonable accommodation, such as a sign lan-guage
interpreter, by contacting [ name, telephone number, TDD telephone number].
Requests should be made as early as possible to arrange the accommodation.
41
Form 7.4
Notice of Regular Meetings of a Public Body
Sections 7.6.3, 7.6.6, 7.7.4, and 7.10.1
NOTICE OF REGULAR MEETINGS OF THE [ NAME OF PUBLIC BODY]
Pursuant to A. R. S. Â 38- 431.02( F), notice is hereby given to the members of the
[ name of public body] and to the general public that the [ name of public body] will
hold regular meetings on the [ specific day of month] of each month during the year
[ year]. The meetings will begin at [ time] and will be held at [ exact location].
A copy of the agenda for the meeting will be available at [ location where the agenda
will be available] at least twenty- four hours in advance of the meeting.
Dated this ____ day of _______________, 20____.
[ name of public body]
By [ authorized signature]
Persons with a disability may request a reasonable accommodation, such as a sign lan-guage
interpreter, by contacting [ name, telephone number, TDD telephone number].
Requests should be made as early as possible to arrange the accommodation.
42
Form 7.5
Notice of Meeting and Possible Executive Session of a Public Body
Sections 7.6.8 and 7.10.1
NOTICE OF MEETING AND POSSIBLE EXECUTIVE SESSION
OF THE [ NAME OF PUBLIC BODY]
Pursuant to A. R. S. Â 38- 431.02, notice is hereby given to the members of the [ name
of public body] and to the general public that the [ name of public body] will hold a
meeting open to the public on [ date, time, and exact location] for the purpose of de-ciding
whether to go into executive session. If authorized by a majority vote of the
[ name of public body], the executive session will be held immediately after the vote
and will not be open to the public.
The agenda for the meeting is as follows:
[ Include a general description of the matters to be discussed or considered, but exclude
information that would defeat the purpose of the executive session. See Form 7.7
( Sample Notice and Agenda)]
[ OR]
A copy of the agenda for the meeting will be available at [ location where the agenda
will be available] at least twenty- four hours in advance of the meeting.
This executive session is authorized under A. R. S. Â 38- 431.03, Subsection ( A), para-graph
[ list applicable provision].
Dated this ____ day of _______________, 20____.
[ name of public body]
By [ authorized signature]
Persons with a disability may request a reasonable accommodation, such as a sign lan-guage
interpreter, by contacting [ name, telephone number, TDD telephone number].
Requests should be made as early as possible to arrange the accommodation.
43
Form 7.6
Notice of Combined Public Meeting and Executive Session
Sections 7.6.8, 7.7.4, and 7.10.1
NOTICE OF COMBINED PUBLIC MEETING AND EXECUTIVE
SESSION OF [ NAME OF PUBLIC BODY]
Pursuant to A. R. S. Â 38- 431.02, notice is hereby given to the members of the [ name
of public body] and to the general public that the [ name of public body] will hold a
meeting open to the public on [ date, time, and exact location]. As indicated in the agen-da,
pursuant to A. R. S. Â 38- 431.03( A)( X), the [ name of public body] may vote to go
into executive session, which will not be open to the public, to discuss certain matters.
The agenda for the meeting is as follows:
[ List the specific matter to be discussed, considered, or decided. See Form
7.7 ( Sample Notice and Agenda). Identify those matters that may be dis-cussed
or considered in executive session and identify the paragraph of
A. R. S. Â 38- 431.03( A) authorizing the executive session, but exclude in-formation
that would defeat the purpose of the executive session.]
[ OR]
A copy of the agenda for the meeting will be available at [ location where the agenda
will be available] at least twenty- four hours in advance of the meeting.
Dated this ____ day of _______________, 20____.
[ name of public body]
By [ authorized signature]
Persons with a disability may request a reasonable accommodation, such as a sign lan-guage
interpreter, by contacting [ name, telephone number, TDD telephone number].
Requests should be made as early as possible to arrange the accommodation.
44
Form 7.7
Sample Notice and Agenda of Public Meeting and Executive Session
Sections 7.6.4, 7.6.8, 7.7.2, 7.7.4, and 7.10.1
NOTICE AND AGENDA OF MEETING
OF THE ARIZONA COMMISSION ON THE ENVIRONMENT
Pursuant to A. R. S. Â 38- 431.02, notice is hereby given to the members of the Arizona
Commission on the Environment and to the general public that the Arizona Commis-sion
on the Environment will hold a meeting open to the public on January 21, 2000,
beginning at 8: 30 a. m. in Room 201, Health Building, 1740 West Adams, Phoenix, Ari-zona.
As indicated in the following agenda, the Arizona Commission on the Envi-ronment
may vote to go into executive session, which will not be open to the public,
to discuss certain matters.
The agenda for the meeting is as follows:
I. Call to Order. ( Chairman Smith)
II. Approval of Minutes of October 19, 1999 Meeting.
III. Committee Reports. ( Oral reports of the following committees and
discussion thereon.)
1. Computer Committee. Report by the chair of the Commissionâ€™s
Advisory Committee on proposals for acquiring a new computer
system for the Commission.
IV. Personnel.
1. Consideration of applicants for Director of the Commission. The
Commission may vote to discuss this matter in executive session
pursuant to A. R. S. Â 38- 431.03( A)( 1). The names of the applicants
may be obtained by contacting the Commissionâ€™s Executive Sec-retary.
2. Selection of Director of the Commission. The Commission may
defer a decision on this matter to a later date.
V. Litigation.
1. State v. Acme Polluters. Discussion and decision concerning possi-ble
settlement. The Commission may vote to discuss this matter with
the Commissionâ€™s attorneys in executive session pursuant to A. R. S.
Â 38- 431.03( A)( 3) and ( 4). The Commission may decide the mat-ter
in the public meeting or defer decision to a later date.
2. Instituting Litigation. Discussion with and instruction to the Com-
45
missionâ€™s attorneys concerning the filing of an enforcement action
against The Brown Corporation. The Commission may discuss this
matter in executive session pursuant to A. R. S. Â 38- 431.03( A)( 2),
( 3), and ( 4). The Commission may decide the matter in the public
meeting or defer decision to a later date.
VI. Consent Agenda.
Approval of routine warrants, purchase orders, travel claims, employ-ee
leave and transfer requests, and employee resignations. ( Docu-mentation
concerning the matters on the consent agenda may be
reviewed at the Commissionâ€™s office.) Any matter on the Consent
Agenda will be removed from the Consent Agenda and discussed as a
regular agenda item upon the request of any Commission member.
1. Approval of purchase order numbers 1204, 1205, and 1206 for pur-chase
of computer equipment.
2. Approval of travel claims for employees John Q. Smith and Mary
M. McGee.
3. Approval of resignation of Daniel Warren and resolution to thank
Daniel Warren for ten years of service.
VII. Call to the Public.
This is the time for the public to comment. Members of the Board
may not discuss items that are not on the agenda. Therefore, action
taken as a result of public comment will be limited to directing staff to
study the matter or scheduling the matter for further consideration and
decision at a later date.
VIII. Announcements.
Announcements of future meeting dates and other information con-cerning
the Commission.
A copy of the agenda background material provided to Commission
members ( with the exception of material relating to possible executive
sessions) is available for public inspection at the Commissionâ€™s office,
Room 402, Health Building, 1740 West Adams, Phoenix, Arizona.
Dated this 7th day of January, 2000.
ARIZONA COMMISSION ON THE ENVIRONMENT
Chris Jones
Executive Secretary
Persons with a disability may request a reasonable accommodation, such as a sign lan-guage
interpreter, by contacting [ name, telephone number, TDD telephone number].
Requests should be made as early as possible to arrange the accommodation.
46
Form 7.8
Certification of Posting of Notice
Section 7.6.9
CERTIFICATION OF POSTING OF NOTICE
The undersigned hereby certifies that a copy of the attached notice was duly posted
at [ place] on [ date and time] in accordance with the statement filed by the [ name of
public body] with the [ name of public officer with whom the statement was file